H2A Visa

The H-2A visa is a type of nonimmigrant visa which allows employers in the U.S. to bring eligible workers to the U.S. to fill temporary agricultural jobs 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.

‘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.

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To qualify, the employer/petitioner must be:

1. Offering a job which is temporary or seasonal;
2. Able to show that there aren’t enough U.S. workers who are able, willing qualified and available to do the temporary/seasonal work; and
3. Able to show that employing the foreign workers will not adversely affect the working conditions of U.S. workers.

Note: As of Jan 17, 2025, the H-2A and H-2B are no longer restricted to nationals of certain countries. Employers are able to hire citizens of any country for these visa categories.

1. The benefits of an H-2A visa for a foreign national include: Enter into the U.S. for temporary work and enjoy all the benefits of a regular employee
2. H-2A holders can bring their spouse and children under 21 to stay with them in the U.S. in H-4 status. H-4 holders can attend school, through university, in the U.S. without restriction.
3. Travel in and out of the U.S. freely during the the validity of your visa
4. Change jobs if you can show a new job offer

The limitations of H-2A visa include:

1. 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
2. The employer has the burden of establishing the facts necessary to support a finding that the need is seasonal or temporary
3. H-2A time counts whether you are in the U.S. or abroad
4. H-2A dependents may not work in the U.S.

The requirements are:

1. An agricultural employer may file an application requesting temporary foreign agricultural labor certification
2. 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
3. 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

To qualify for the H-2A visa, you must:

1. Have a valid job offer from a U.S. employer to perform temporary or seasonal agricultural work
2. Show proof of an intent to return to your home country on expiration of the visa

The H-2A labor certification application shall be valid for the period of employment indicated on the ETA Form 9142A, Application for Alien Labor Certification. However, in no event shall the validity period exceed 1 year. Extensions may be granted for qualifying employment in 1 year increments. The maximum period of stay in H-2A status is 3 years.

Yes, the employer may apply for an 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 and include a new labor certification.

No, the maximum period of stay in H-2A status is 3 years. However, you can “reset” the 3 year period if you can show you were physically absent from the U.S. for an uninterrupted period of at least 60 days.

When filing a new H-2A petition, the employer must provide evidence that the beneficiary was outside the U.S. for the entire 60-day period.

No, short trips to the U.S. as a business or tourist visitor will not reset the 60 days. However, any time spent in the U.S. will not count towards the required 60 days.

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 with USCIS.

Note: H-2A certification is issued to the employer, not the worker, and is 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.

H-2A workers can continue working while a properly filed H-2A extension or amendment petition is pending. Additionally, H-2A workers can begin working with the new employer once an H-2A petition to change employer is filed.

No, there are no travel restrictions on the H-2A visa. You may travel as many times as required before the expiry of your H2A status. The USCIS also does not impose any time limit on your stay abroad.

Yes, you may study on H-2A visa, however, your course of study must be incidental to your H-2A status.

Yes, you may bring your dependents on H-4 visas. Your spouse and unmarried children under 21 are entitled to H-4 status as long as you maintain valid H-2A status.

No, your dependents may not work while in H-4 dependent status. They can apply for an appropriate work visa if they wish to work in the U.S.

Yes, your dependents may study while in H-4 status, including full-time enrollment, from elementary education through university or graduate education.

If your child(ren) is turning 21 and are in school, they should change status to F-1 or obtain an F-1 visa so they can continue their education past the age of 21.

The employer should file the H-2A petition with USCIS at least 30-60 days but not more than 120 days before the worker is needed. The employer must allow enough processing time for delays and correction of application errors, however, USCIS does aim to have H-2A petitions processed within 15 days.

It’s important to remember that if you wish to file an H-2A petition 30-60 days before the start date, you must start the process of obtaining the temporary labor certification at least 75-100 days before the start date.

The following forms must be submitted and/or certified before filing the I-129 with USCIS:

1. Department of Labor Form ETA Form ETA-9142A, Application for Alien Labor Certification, filed with the OFLC’s Chicago National Processing Center (at least 45 days before the start of work)
2. Department of Labor Form ETA790/790A, Agricultural Clearance Order, with the State Workforce Agency (at least 75-60 calendar days before the start of work)
3. Attachments as appropriate to supplement information requested on the above Forms and statement of authorization of agent or association, if applicable

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 DOL 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.

In order to obtain a temporary labor certification for the H-2A program, the employer must:

1. File a Job Order (Form ETA-790/790A) with the State Workforce Agency the services the state where the actual work will be performed. It should be submitted 75-60 calendar days before the start of work.
2. Submit the H-2A Application (Form ETA Form ETA-9142A) with the OFLC’s Chicago National Processing Center (NPC) at least 45 days before the start of work.

Note: In emergency situations the DOL or the SWA may expedite the time periods specified. However, none of the minimum conditions of employment (wages, housing, and other benefits) are waived

Once the appropriate certifications are obtained, the Form I-129, Petitioner for Nonimmigrant Worker must be submitted to USCIS with the temporary labor certification and required evidence.

The employer must file the petition with the appropriate USCIS lockbox.

Your H-2A temporary labor certification or H-2A petition can be denied when:

1. 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
2. Sufficient able, willing, and qualified eligible U.S. workers are available to fill all the employer’s job opportunities
3. The employer has not complied with the worker’s compensation requirements
4. The employer has not satisfactorily complied with positive recruitment requirements
5. The employer, since the application was accepted for consideration, has adversely affected the wages, working conditions, or benefits of U.S. workers
6. After appropriate notice and opportunity, USCIS determines that the employer has substantially violated a material term or condition of a previous H-2A, has not been willing to comply with site visits, and/or it has been found that the petitioner has committed certain labor or other legal violations or misused the H-2 programs.

Yes, you may apply for a Green Card while on the H-2A visa.

You may apply for lawful permanent residence in the U.S. through the following options:

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.

Employment Based Immigration(Labor Certification): You may find an employer who is willing to file a Labor Certificate for you with the DOL.

1. Recruitment: The employer must have made positive efforts to engage U.S. workers. This means:

   a. The Chicago National Processing Center will provide instructions regarding recruitment, which may include contacting former US employees and inviting them to return to work for you, posting ads in the newspaper on a Sunday as well as one other day, and/or advertising in other states in the region or in expected labor supply states.

   b. Submit a Job Order to the OFLC electronic job registry (seasonaljobs.dol.gov)

   c. Work with the SWA to accept referrals of potential candidates

   d. 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

2. 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, the applicable prevailing hourly rate or piece rate, or the agreed-upon collective bargaining wage, whichever is higher. The Adverse Effect Wage Rate is established every year by the Department of Labor for every state. Employers should consult with the Department of Labor to determine the current rate.
3. 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.
4. 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.
5. Transportation: Employers must provide or pay for inbound transportation and meals to the place of employment or reimburse you for the reasonable costs after completing 50% of the contract work. 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.

You must keep in mind the following:

1. Costs to obtain an H-2A Visa: The employer cannot make the beneficiary pay or reimburse the employer, directly or indirectly, any of the costs related to obtain the H-2A labor certification, including the attorney’s fees, the H-2A petition fees or recruitment costs.
2. 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
3. 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
4. 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
5. 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
6. 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
7. 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
8. 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

Employers must notify USCIS within 2 workdays when:

1. A Worker has not reported for work within 5 work days of the employment start date or the employer’s start date, whichever is later;
2. A worker has stopped reporting for work for 5 consecutive work days without the employer’s consent;
3. The worker is terminated before completing the services; and/or
4. The worker finishes the labor or services more than 30 days earlier than the H-2A end date.