1. What is H2A visa?
The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. to perform agricultural labor or services of a temporary or seasonal nature.
Note: The temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S.
2. What is meant by 'temporary or seasonal nature' of agricultural labor?
‘Temporary or seasonal nature’ means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign workers is truly temporary.
3. What privileges do I enjoy on H-2A visa?
On H-2A visa you may:
- Enter into the U.S. for temporary work and enjoy all the benefits of a regular employee
- Get your dependents to stay with you in the U.S.
- Travel in and out of the U.S. freely till the validity of your visa
- Change jobs if you can show a new job offer
4. What are the limitations of H-2A visa?
The limitations of H-2A visa are:
- The job must be temporary in nature and the need should be for one year or less. The employer’s need cannot be ongoing or continuous
- The employer has the burden of establishing the facts necessary to support a finding that the need is seasonal or temporary
- H-2A time counts whether you are in the U.S. or abroad
- H-2A dependents may not work in the U.S.
5. What are the requirements for H-2A visa employer?
The requirements are:
- An agricultural employer may file an application requesting temporary foreign agricultural labor certification
- The employer may be an individual proprietorship, a partnership or a corporation. An association of agricultural producers may file as a sole employer, a joint employer with its members, or as an agent of its members
- Travel in and out of the U.S. freely till the validity of your visa
- An authorized agent, whether an individual (e.g., an attorney) or an entity (e.g., an association), may file an application on behalf of an employer. Associations may file master applications on behalf of their members
Note: Many of the benefits that must be included in a job offer and other conditions that must be satisfied will be dependent upon what prevailing practices exist in the same occupation, crop and area. Employers are advised to make an independent determination of factors such as prevailing wages and employer practices before filing an application
6. What are the requirements for H-2A visa applicant?
To qualify for H-2A visa, you must:
- Have a valid job offer from a U.S. employer to perform temporary or seasonal agricultural work
- Show proof of an intent to return to your home country on expiration of the visa
7. How long can I stay in the U.S. on H-2A visa?
The H-2A labor certification application shall be valid for the period of employment indicated on the Form ETA-750A, Application for Alien Labor Certification. However, in no event shall the validity period exceed 364 days. You may stay for two more years with two one year increments. With initial one year and two one year extensions, you may stay for three years on H-2A visa.
8. Can I extend my stay on H-2A visa?
Yes, you may apply for Extension of Stay on H-2A visa. The employer may apply for re-certification for an additional two years with one year extensions, but on each new application, the employer must justify the reason for the renewal request.
9. Can I change status while on H-2A visa?
Yes, you may apply for change of status on H-2A visa. If you are changing the job or employer (like H-2A to H-2B), have your new employer file Form I-129, Petition for Nonimmigrant Worker, at the USCIS Regional Service Center with jurisdiction over your residence.
Note: H-2A certification is issued to the employer, not the worker, not transferable from one employer to another or from one worker to another. Certification is issued only for a specific job opportunity, for a specific number of workers, and for a specific employment period.
10. Are there any travel restrictions on H-2A visa?
No, there are no travel restrictions on H-2A visa. You may travel as many number of times as required before the expiry of your H2A status. The USCIS also does not impose any time limit on your stay abroad.
11. Can I study on H-2A visa?
Yes, you may study on H-2A visa, however, you may not join a full length program like an F-1. You may take up a few credits at a university, when they do not harm the primary interest of the visa.
12. Can I bring my dependents on H-2A visa?
Yes, you may bring your dependents on H-2A visa. Your spouse and unmarried children are entitled to an H-4 visa and they can stay as long as you maintain valid H-2A status.
13. Can my dependents work on H-4 visa?
No, your dependents may not work on dependent status. They have to apply for appropriate Work Visa.
14. Can my dependents study on H-4 visa?
Yes, your dependents may study on H-4 visa, and they do not have to apply for a separate Student Visa.
15. What is the processing time for H-2A visa?
The employer should file the H-2A petition at least 60 days but not more than 120 days before the worker is needed. As this is a lengthy process, the employer must allow enough processing time for delays and correction of application errors.
16. What forms are to be submitted by H-2A employer?
The forms to be submitted are:
- Department of Labor Form ETA-750A, Application for Alien Labor Certification
- Department of Labor Form ETA-790, Agricultural and Food Processing Clearance Order
- Attachments as appropriate to supplement information requested on the above Forms and statement of authorization of agent or association, if applicable
17. Where is the Labor Condition application for H-2A temporary work visa filed?
A temporary agricultural Labor Certification must be obtained from the U.S. Department of Labor to employ temporary or seasonal workers. Before the USCIS can approve an employer’s petition for such workers, the employer must file an application with the Department stating that there are not sufficient workers who are able, willing, qualified, and available and that the employment of foreign nationals will not adversely affect the wages and working conditions of similarly employed U.S. workers.
18. When should the Labor Certification Application for H-2A visa be filed?
Applications must be filed with the appropriate U.S. Department of Labor (DOL), Regional Administrator (RA), Employment and Training Administration (ETA) and local office of the State Employment Service at least 45 days before the first date on which workers are needed. If the application is acceptable, the RA will make a certification determination 20 days before the date on which the workers are needed.
Note: In emergency situations the regional administrator may waive the time period specified, provided the regional administrator has an opportunity to obtain sufficient labor market information on an expedited basis on the U.S. worker availability. However, none of the minimum conditions of employment (wages, housing, and other benefits) are waived
19. Where should I submit the H-2A visa application?
If you are:
- In a lawful status in the U.S., submit the visa application to a USCIS field office in the U.S.
- Outside the U.S., submit the visa application to the American Consulate where you reside
20. How will I know when my H-2A visa application is accepted for consideration?
If your application is accepted for consideration, the regional administrator will notify the employer in writing. The regional administrator’s notice of acceptance will:
- Inform the employer and the SWA of specific efforts expected of them regarding recruitment of U.S. workers
- Require that the job order be placed into appropriate intrastate and interstate clearances and
- Require the employer to engage in independent positive recruitment efforts within a multi-state region of traditional or expected labor supply if the regional administrator determines there is a sufficient supply of labor to be recruited
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.
26. Is there any additional information about H-2A visa?
You must keep in mind the following:
- Workers Compensation Insurance: The employer must provide workers compensation insurance where it is required by state law. Where state law does not require it, the employer must provide equivalent insurance for all workers. Proof of insurance coverage must be provided to the regional administrator before certification is granted
- Tools and Supplies: The employer must furnish at no cost to the worker all tools and supplies necessary to carry out the work, unless it is common practice in the area and occupation for the worker to provide certain items
- Three-Fourths Guarantee: The employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the work contract period and any extensions. If the employer affords less employment, then the employer must pay the amount which the worker would have earned had the worker been employed the guaranteed number of days
- Fifty Per cent Rule: The employer must hire any qualified and eligible U.S. worker who applies for a job until 50 percent of the period of the work contract has elapsed
- Labor Dispute: The employer must assure that the job opportunity for which H-2A certification is being requested is not vacant because the former occupant is on strike or is being locked out in the course of a labor dispute
- Certification Fee: A fee will be charged to an employer granted temporary, foreign agricultural, labor certification. The fee is $100, plus $10 for each job opportunity certified, up to a maximum fee of $1,000 for each certification granted
- Other Conditions: The employer must keep accurate records with respect to a worker’s earnings. The worker must be provided with a complete statement of hours worked and related earnings on each payday. The employer must pay the worker at least twice monthly or more frequently if it is the prevailing practice to do so. The employer must provide a copy of a work contract or the job order to each worker
27. What needs to be done in situation of violations/penalties and sanctions?
A major consideration of IRCA is the enforcement of all provisions related to protections for workers. The Employment Standards Administration (ESA) of DOL has a primary role in investigating the terms and conditions of employment. ESA is responsible for enforcing contractual obligations of employers, and may assess civil monetary penalties and recover unpaid wages. ETA will enforce other aspects of the laws and regulations and will be responsible for administering sanctions for violations of the regulations.