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
The Grady Firm works with dynamic employers and employees across the country to prepare successful employment-based visa and Green Card applications. In addition, we help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas (B-1/B2, H-1B, H-2A, H-2B, L-1A, L-1B, O-1, TN, E-2, E-3), as well and Green Cards and citizenship based on family relationships, investment, or employment.
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This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.