H-2A Visas for Agricultural Workers

The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs.

I. REQUIREMENTS

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; and
Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition.

II. PROCEDURES

This visa is a multi-step process to allow workers to work in the US for a seasonal or peak need that is summarized as follows:

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. The employer will also have to go through a recruitment process to show that it was unable to hire US workers before proceeding to sponsor workers from abroad.

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 United States apply for visa and/or admission at a US Consulate or embassy abroad. After USCIS approves Form I-129, prospective H-2A workers who are outside the United States 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 United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
Directly seek admission to the United States 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.

III. ELIGIBLE COUNTRIES LIST

Except as noted below, H-2A petitions may only be approved for nationals of countries that the secretary of Homeland Security has designated, with the concurrence of the Office 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 from publication.

Effective Jan. 19, 2021, 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 Liechtenstein Lithuania Luxembourg North Macedonia Madagascar

Malta Moldova Mexico Monaco Montenegro Mozambique Nauru The Netherlands Nicaragua New Zealand Norway Panama Papua New Guinea Paraguay Peru Poland Portugal Romania San Marino

Serbia Singapore Slovakia Slovenia Solomon Islands South Africa South Korea Spain St. Vincent and the Grenadines Sweden Switzerland Taiwan* Thailand Timor-Leste Turkey Tuvalu Ukraine United Kingdom Uruguay Vanuatu

IV. 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 United States 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.

V. OPTIONS FOR FAMILY MEMBERS

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 United States while in H-4 status.

VI. COVID-19 ADJUSTMENTS

On Dec. 18, 2020, the Department of Homeland Security published a new temporary final rule extending the provision that temporarily allows all H-2A petitioners with a valid temporary labor certification (TLC) to start employing certain foreign workers who are currently in the United States and in valid H-2A status. DHS also extended the provision that allows H-2A workers to change employers and begin work before USCIS approves the new H-2A petition. DHS will apply this temporary final rule to H-2A petitions requesting an extension of stay, if they were received on or after Dec. 18, 2020, through June 16, 2021. Additional information is available under the H-2A Requirements During COVID-19 Public Health Emergency section on the USCIS Response to COVID-19 page.

If you are interested in learning more about how to bring agricultural workers to the United States to support your business, contact The Grady Firm at 949-798-6298, or schedule a consultation on our website here: https://www.gradyfirm.com/schedule

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