H-2A VISA FOR AGRICULTURAL WORKERS
H-2A Visa for Temporary or Seasonal Agricultural Workers
The H-2A visa is for foreign individuals performing “agricultural labor or services … of a temporary or seasonal nature.” Agriculture can include all types of farming, raising livestock, and forestry. The H-2A must be tied to a certain time of year like an annual growing cycle, to provide your farm with extra labor when far more is needed above the normal amount. It usually should last less than one year.
Step 1: Department of Labor
To sponsor workers for H-2A visas, you must first prove to the Department of Labor that there are not enough US workers to do this job and that if you sponsor foreign workers, it would not decrease the wages and working conditions of US workers. This is called a Temporary Labor Certification. Certain wage rates are required by the US Government and there are specific requirements for the job offer. You must advertise the job position with your State Workforce Agency starting between 75 and 60 days before your date of need and continue to try to recruit US workers.
Then, prior to 45 days before your date of need, you need to apply for a Temporary Employment Certification. This time requirement can be waived if there is a good reason that you didn’t already apply last year. As the employer you must agree to make certain promises about labor, housing and wage conditions.
The recruitment process continues and you must advertise the position in newspapers. You must respond to inquiries from US workers and interview them. You can only reject a US worker for lawful, job-related reasons. There are special rules for beekeepers, sheepherding and goatherding, open range livestock, and animal shearing.
Step 2: Department of Homeland Security
After you receive a Temporary Labor Certification from the Department of Labor, the next step is to file a petition for the foreign workers with the Department of Homeland Security. It is Form I-129. You have to distinguish which employees are from “DHS designated H-2A countries” and which aren’t. You must also name all H-2A beneficiaries who are currently in the US as well as provide evidence that they meet the minimum job requirements.
By signing Form I-129, you agree: to let DHS perform site inspections and to notify DHS if the employee doesn’t show up or disappears, or if the work is completed more than 30 days early.
Step 3: Employees Arrive
Your workers can come to the US up to 1 week before the start date. There is a 30-day grace period at the end of the H-2A status. A worker can be in H-2A status up to 3 years, and then must be gone from the US for 3 months. If the worker violates the terms of status, he or she can be barred for 5 years. The H-4 visa is available for spouses and dependent children. There are special rules for sheepherders, Canadian Custom Harvest or Combine Operators, and some Caribbean residents. Meanwhile, you must be very cautious to follow all government requirements regarding your farm and the program because the government can and will investigate for possible violations.