21. How will I know if my H-2A visa application is not considered?
If your application is not accepted, then the regional administrator will notify the employer in writing within seven days after receipt of the application. The regional administrator’s notice of nonacceptance will:
- State why the employer’s application is not acceptable
- State changes necessary for the application to be accepted for consideration
- Allow the employer five calendar days to resubmit the application
- Outline procedures employer may use to appeal the RA’s nonacceptance
22. Can my employer re-submit the amended application for H-2A visa?
Yes, your employer may resubmit the H-2A visa application with modifications. In such instances, the employer should file the amended application within five days of the regional administrator’s notice of nonacceptance. The amended application must be filed with the regional administrator (with a copy to the SWA).
23. Under what circumstances can my H-2A visa application be denied?
Your H-2A visa application may be denied when:
- The application did not meet the required time frames (except in emergency situations) and there is not enough time to test the availability of U.S. workers
- Enough able, willing, and qualified eligible U.S. workers are available to fill all the employer’s job opportunities
- The employer has not complied with the worker’s compensation requirements
- The employer has not satisfactorily complied with positive recruitment requirements
- The employer, since the application was accepted for consideration, has adversely affected the wages, working conditions, or benefits of U.S. workers
- After appropriate notice and opportunity for a hearing, the regional administrator determines that the employer has substantially violated a material term or condition of a previous H-2A certification within the last two years
24. Can I apply for a Green Card while on H-2A visa?
Yes, you may apply for Green Card while on H-2A visa. You may attain an immigrant status in the U.S. through the following Family Based Immigration. If you have close relatives who are U.S. citizens or U.S. permanent residents, the relatives may file an immigration petition for you as the beneficiary. Close relatives, as defined by immigration law, include parents, unmarried minor children and spouses.
25. What are the requirements that should be met by the employer of H-2A applicant?
- Recruitment: The employer must have made positive efforts to engage U.S. workers. This means an active effort, including newspaper and radio advertising in areas of expected labor supply. This must be an effort independent of and in addition to the efforts of the SWA. In establishing worker qualifications and/or job specifications, the employer must designate only those qualifications and specifications which are essential to carrying out the job and which are normally required by other employers who do not hire foreign workers
- Wages: The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher. The Adverse Effect Wage Rate is established every year by the Department of Labor for every state except Alaska. Employers should consult with the SWA or the Department of Labor regional office to determine what the rate is for their state
- Housing: The employer must provide free housing to all workers who are not reasonably able to return to their residences the same day. Such housing must be inspected and approved according to appropriate standards. Generally, housing provided must meet the full set of standards established by DOL’s Occupational Safety and Health Administration (OSHA). Rental housing which meets local or state health and safety standards also may be provided
- Meals: The employer must provide either three meals a day to each worker or furnish free and convenient cooking and kitchen facilities for workers to prepare their own meals. If meals are provided, then the employer may charge each worker a certain amount per day for the three meals
- Transportation: After a worker has completed 50 per cent of the work contract period, the employer must reimburse the cost of transportation and subsistence from the place of recruitment to the place of work if such costs were borne by the worker
- The employer must provide free transportation between the employer’s housing and the worksite for any worker who is provided housing
- Upon completion of the contract, the employer must pay economic costs of a worker’s subsistence and return transportation to the place of recruitment. Special conditions apply when the worker will not be returning to the place of recruitment because of another job
- If the employer must advance transportation costs to foreign workers or provide transportation, the employer must advance such costs or provide transportation to U.S. workers as well. In addition, if it is prevailing practice in the occupation to provide transportation, the employer must provide transportation to the U.S. worker as well.