The H-2A program is a temporary visa program that allows U.S. agricultural employers or U.S. agents to bring foreign workers in the United States for agricultural labor, seasonal or temporary services. There must be a shortage of workers like that in the US. These foreign workers come mainly from rural communities and usually go home at the end of the season and return to the same employer after a season or labor cycle.
The H-2A visas are not self-petitioned. Employers or agents are the ones that file the petition. The process is tricky because the employer must complete the application forms and then conduct foreign employees’ recruitment. The recruits are admissible in the US only if the employer can demonstrate United States workers are not available.
Suppose you are an agricultural employer looking for a workforce for your farm or ranch, but workers in the U.S. are in short supply. In that case, you need to understand the H-2A temporary agricultural worker program. At the California Immigration Attorney, we help many agricultural employers in California get reliable, able, and legal foreign workers to meet their seasonal agricultural work needs.
Overview of H-2A Visas
An H-2A classification, as mentioned above, is a non-immigrant program that permits U.S. employers to bring foreigners in the country to fill low-skill, temporary, or seasonal agricultural jobs. Agriculture, in this case, includes all kinds of livestock keeping, farming, and forestry. The term seasonal position, in this case, is defined as work tied to a particular season of the year or pattern like planting or harvesting period that requires extra labor than the one needed in the rest of the year.
On the other end, temporary work is when an American employer needs to fill specific work positions with temporary workers for a duration not exceeding one year. However, in exceptional circumstances, the period can be extended to more than a year.
Generally, the program is tied to a specific period when the USCIS agency grants H-2A classification for no more than ten months. After ten months, the worker returns to their home country and wait for another season. If they are returning to the same employer, they have to request a visa renewal. Before allowing you to hire foreign workers, you must prove to the agency that there are no able, available, or willing to work Americans for which foreign temporary agricultural workers are being requested.
Furthermore, the agency must prove recruiting foreigners to work in their farms or ranches will not negatively affect the salaries or working conditions of the American workers doing the same job.
However, suppose a nonimmigrant agricultural worker decides to switch employers at the end of the season. In that case, they can extend the original visa for a temporary duration but within the United States. Besides, it’s worth understanding that there are zero limits on the number of these visas delivered yearly for an individual country or the program in general.
An employer cannot recruit workers from any country. The Department of Homeland Security publishes the list of countries where employers, agents, or American agricultural producers’ associations can recruit employees yearly. Recruitment from the published country is only valid for one year from the date of publication. So, as an American employer, you will need to act first and file the petition on behalf of the foreign workers to satisfy your agricultural labor needs.
Requirements for H-2A Classification
Strict regulations govern the H-2A program. The criteria to be met by the petitioner for the visa classification includes:
- Present foreign employees with temporary or seasonal work
- Show that there is only a temporary need for the labor or services provided by foreign workers
- Show there is a shortage of American workers available, able, eligible and willing to do the temporary job.
- Prove that employing H-2A employees won’t negatively affect the earnings and working conditions of similarly usedS. workers.
- The foreign worker must have an overseas residence outside the United States that they are unwilling or planning to abandon.
- The petitioner or American employer can be a sole proprietor, enterprise, or corporation
- Naturally, the petitioner must present a legal non-immigrant labor certification from the Department of Labor with the H-2A petition. Note that in emergent situations, there is an exception to this requirement.
Examples of industries or proprietors or companies utilizing the H-2A classification are:
- Cultivators of field crops like tobacco or vegetables
- Christmas tree farmers
- Hay, grain, and wheat farmers
- Fish farmers and aquaculture practitioners
- Livestock keepers
- Horse breeding operators
- Specialty agricultural enterprise
Suppose you are in any of the above industries and need foreign workers. In that case, you need to speak to an immigration attorney to help you understand the requirements and the H-2A classification process.
The H-2A Classification Process
As stated earlier, you as the American employer files the H-2A petition on behalf of the foreign workers. You must send recruiters to the overseas country where you have identified your workforce. If sending recruiters isn’t possible, you can work with foreign-based recruiters. The recruiters help foreign workers with the program application process and other paperwork at zero obligation, but after there has been a job offer. Discussed below are the steps you should follow to complete the process in your first application successfully:
1. Present your temporary employment certification to the DOL
As an American employer, first, you must submit a petition with the DOL to prove that there is an absence of American workers able, willing, qualified, and available to provide the services or labor H-2A workers will be providing. Further, you must show that bringing these foreigners to the United States will not diminish the earnings or working conditions of American workers. Determining this is what is known as labor certification. Before the labor certification is issued, you must agree to make the following promises.
Recruiting – as an American employer, you must try to recruit local American workers by advertising the work positions with the California State Workforce Agency or several newspaper ads seventy-five or sixty days before your time of need. Besides, you should continue recruiting US workers. Working with an immigration attorney will simplify this step because they will arrange the advertising required, provide your contacts, and the procedure American applicants can follow to complete the forms.
After the advertisement, you must respond to queries the American workers might have and invite eligible applicants for interviews. You can only decline hiring US workers for legal reasons.
Wages – The federal government requires a specific wage rate. Suppose you are working with an attorney; they will keep you up to date with the latest wage rates and other specifics for that position or field.
Transportation – before issuance with the temporary employment certification, you must promise that you will pay your H-2A workers the cost of transportation to the place of work and back home. At the California Immigration Attorney, we will guide you on the amount of transport cost you should pay your foreign workers. Besides, you can work with other facilitators to arrange safe and affordable means of transport for H-2A workers.
Housing – You must provide all foreign workers with free housing that meets the set health and safety standards.
You are required to apply for the temporary employment certification forty-five days before the date of need. However, the requirement can be waived when you have a solid reason for not applying on time.
2. Submit Form I-129 to USCIS
After you have been issued with the employment or labor certification, the next thing is to submit your petition to the USCIS. You should present the original provisional employment certification along with the I-129 form. If there are any workers from a country that isn’t DHS designated, you must distinguish these employees. In your submission, you must name all the H-2A category beneficiaries currently in the United States and demonstrate that they meet all the minimum work criteria.
Take note that by assigning form I-129, you consent to the DHS to inspect your worksite or remind them if they fail to show up. You can also notify them when work is completed thirty days before the expiration of the visa stay.
3. Foreign Workers Apply for H-2A Classification in their Home Country
Once the USCIS agency approves Form I-129, your workers can begin the admission process. Your recruiters in the overseas country will guide the application process. The support provided by recruiters to the foreign workers should be free of charge. The American worker is the one to pay recruiters. These workers outside the United States can apply for the program in two ways:
- Apply for the H-2A classification with the Department of States at an American Embassy or Consulate abroad. After, the applicant should seek admission to the U.S. via the Customs and Border Protection (CBP).
- In cases where the H-2A visa isn’t mandatory, the foreign worker can seek direct admission with CPB.
A prospective H-2A employee, with the help of a recruiter, schedules an appointment with the U.S. embassy. During the interview, the applicant must show the consular officer that they are qualified for the agricultural work, have ties in their mother country, and will return home upon lapsing the H-2A stay.
An applicant should expect some of the questions from the interviewing consulate officer will mainly be about their family or spouses whom they will leave behind, employment history, and wealth in the home country. Although a recruiter is available to offer assistance, the prospective foreign worker conducts the interview alone.
4. H-2A Employee Arrival in the U.S.
The H-2A employee is free to arrive in the U.S. even seven days before the start date. Also, at the lapse of the visa, there is a 30 day grace period.
Rights of American and H-2A Workers
U.S. employers are only allowed by the law to petition for H-2A visas if American workers aren’t adversely affected. The H-2A category applies equally even to U.S. workers in any agricultural job. This means the same rights protect all these workers. Whether you are an American or a foreigner, they will enjoy the same benefits of the H-2A classification.
In a bid to ensure American workers are not adversely affected, the program provides the following equal rights:
The Right to Disclosure
Both U.S. and H-2A workers have a right to accurate written information regarding their earnings, working hours, work conditions, and employment benefits. They need precise information on:
- The start and the lapse date of the H-2A contract and the work site
- All essential working conditions like housing, wages, transportation, and meals
- Working hours a day and days per week each employee should work
- The applicable wage rate for each job
- That any necessary tools, equipment, or supplies for the job will be offered free of charge
- The workers’ compensation will be availed at no cost
- All deduction required by law must be reasonable
- The workers should receive this information before getting the visa or at least a day before the start date.
- All workers should receive the above information in a language they can clearly understand
The Right to Wages
All workers, both foreign and local under the H-2A classification must:
- Must receive their wages twice monthly as stipulated in the contract
- Receive a written statement of all deductions they should expect from their paycheck
- Receive a written statement of their income for each period
- Get a guarantee of employment for not less than 75% of the hours agreed in the contract
The Right to Transportation
All workers under the program:
- Upon completing half of the employment contract duration, will be offered compensation for reasonable transportation and subsistence expenses.
- Upon lapse of the employment contract, be offered transportation and subsistence expenses back home.
- Workers under your housing program should be provided with free transportation from the housing to the place of work.
- All transportation provided by you as the employer must meet particular safety standards, be adequately insured, and run by licensed drivers.
The Right to Housing
The H-2A category requires that:
- For any employee unable to return to their residence on the same day, be offered free housing
- The employer-provided housing must meet all the necessary safety standards and regulations
- Employees living in employer-provided housing must be offered three meals a day. The meals can be provided at no obligation or specified costs. Suppose these are not available, the American employer must provide free and convenient cooking facilities.
California agricultural workers need to know that they are eligible for U.S. employers to seek to fill through the H-2A program. With these jobs, they can enjoy benefits, higher wages, free transportation, and protection, which people working for employers not using the H-2A classification do not enjoy.
Period of Stay for H-2A Employees
You can employ H-2A workers for no more than ten months or as per the time provided in the temporary employment certification within a specific position or job specialty. If you want a more extended stay for your foreign workers, the H-2A program has no provision for that because it is focused on temporary or seasonal jobs.
The program might allow for an extension of stay with an increment of one year. H-2A workers can switch employers for no more than three years. After this maximum increment period, they have to return to their home country for a continuous duration of three months before qualifying for another H-2A classification. Take note that the last time an H-2A worker has spent in the U.S. under the H and L program will count towards the total of the visa stay.
Also, the time an H-2A worker spends outside the U.S. interrupts the authorized visa stay and could see the duration of stay extended to more than three years.
Places H-2A Workers are Allowed to Work
Your H-2A employees can provide labor or services at any worksite you own or run. However, these worksites must be disclosed in the application and situated within the standard commuting distance from the housing you have provided to your workers. Remember that unless you are an H-2A labor contractor, your employees cannot provide services or labor at worksites you don’t own or control.
Usually, if you are a fixed-site employer, you will be limited to a single area of the intended work as per your application. Although there is no actual distance of limitation on the site intended for work, it could include any worksite within a commuting distance or your Metropolitan Statistical Area. In general, employment areas should be a sixty minutes’ drive from the employees’ housing.
In unique circumstances, if you are a fixed-site employer, you can operate in multiple areas of the intended job, absent of the need to make various applications. Further, you could be eligible for notable regulatory variances that permit traveling work across several sites of intended employment. However, you must belong in the category of commercial beekeepers or custom combine operators.
Dependents of the H-2A Employee
The dependents or immediate family of the H-2A employee can accompany the worker to the U.S. They seek admission to the country through the H-4 classification. In this case, dependents are the legal spouses and unmarried children 21 years or younger. Note that when these family members come to the United States, they aren’t allowed to work during the stay. To be eligible for employment, these family members of the H-2A holder must change their visa status to a nonimmigrant classification for which accompanying family is allowed to seek employment.
As an H-2A petitioner or employer, you should notify a USCIS center in California within two days via email or mail if the following things happen:
- An H-2A Employee fails to report to work within five days of the work start date on the employer’s H-2A petition or one set.
- An H-2A employee leaves the worksite without notice and fails to report to work for five consecutive days without the employer’s consent, otherwise known as abscondment.
- A foreign agricultural worker is terminated before the lapse of the visa stay
- An H-2A worker completes labor or service hours for which they were hired to perform, thirty days before the lapse of their period of stay.
When sending this notification to the agency, as an employer, you must ensure the following information is captured:
- Your reasons for sending the notice
- The reason for the early notification
- The USCIS receipt number for the accepted H-2A petition
- The petitioner’s name, physical address, contact number, and employer identification number
- The employer’s contact information
- The H-2A employee’s contact information
If an H-2A employee has social security or visa number, you can submit the information to simplify the agency’s identification process.
Keep in mind that if you don’t comply with the notification conditions or fail to demonstrate good cause for the untimely notification, you may be required to pay a fine of $10 every time there is an incident of non-compliance. The most efficient way to send messages is through email.
All petitioners, agents, facilitators, or recruiters are forbidden from collecting direct or indirect payment or a job fee at any time from a prospective H-2A worker as a condition for the job.
As a petitioner, you are accorded this opportunity to notify the California service center about compensation to an agent or prohibited fee after filing an H-2A petition to prevent denial or revocation of the petition. However, if you were aware or ought to have known at the time of filing the petition that the prospective H-2A worker had paid or agreed to pay a particular amount of money as a condition for employment, sending a notification to the USCIS will not prevent revocation or denial of the petition.
You should notify the agency of a prospective H-2A worker’s payment or agreement to pay a separate fee to a recruiter or facilitator within 48 hours of learning about the prohibited fees.
Find the Right Immigration Attorney Near Me
If you are an agricultural employer or U.S. agent in California in need of help with foreign recruitment, you need to get in touch with experienced immigration attorneys. At the California Immigration Attorney, we are willing to help you hire qualified and able H-2A workers. Contact us today at 424-789-8809 for a free consultation or to begin the application process.