The H-2A visa program permits U.S. employers to sponsor foreign nationals and bring them to the U.S to fill temporary agricultural jobs. The U.S. employer must file a Form I-129, Petition for Nonimmigrant Worker, on behalf of the prospective employee. The U.S. employer must meet the following criteria:
- Offer a job that is temporary or seasonal in nature;
- Demonstrate that there are insufficient U.S. workers who are able, willing, qualified, and available to perform the temporary or seasonal job;
- Demonstrate that employing the H-2A employee will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers; and
- Submit a single valid temporary labor certification from the U.S. Department of Labor.
The U.S. employer must, first, submit the temporary labor certification application to the U.S. Department of Labor. Once the employer has received the temporary labor certification from the Department of Labor, the employer must file Form I-129 with USCIS. Once USCIS has approved the employer-submitted Form I-129, the prospective H-2A employee who is outside the U.S. must apply for an H-2A visa with the U.S. Department of State at either a U.S. Embassy or Consulate abroad, then seek admission to the U.S. with U.S. Customs and Border Protection (CBP) at a U.S. port of entry. In the alternative, the foreign national can seek direct admission to the U.S. under the H-2A classification with CBP at a U.S. port of entry if the prospective employee does not require a visa.
USCIS maintains a list of those countries in which foreign nationals are eligible to participate in the H-2A visa program. If the foreign national’s country is not included in the list, a written request may be submitted to the Department of Homeland Security (DHS).
USCIS is permitted to grant H-2A classification for up to the period of time authorized on the temporary labor certification issued by the U.S. Department of Labor. The H-2A visa may be extended in increments of up to one (1) year; however, an updated temporary labor certification must accompany each extension request. The maximum stay that a foreign national qualifies for pursuant to the H-2A classification is three (3) years.
If the foreign national previously had H-2A nonimmigrant status for three (3) years, the individual must leave and remain outside the U.S. for an uninterrupted period of three (3) months before seeking readmission as an H-2A nonimmigrant. It is important to remember that previous time spent in the U.S. by the foreign national pursuant to other H or L visa classifications accumulates toward H-2A qualification times.
H-2A workers may be accompanied by their spouse and unmarried children who under the age of 21 and make seek admission pursuant to the H-4 nonimmigrant status. It is important to note that the H-2A worker’s spouse and unmarried children are not authorized to seek or obtain employment while in the U.S. pursuant to the H-2A visa program.
Employers must notify USCIS within two (2) workdays if the H-2A worker: fails to report to work within five (5) work days of their start date; leaves without notice or fails to appear for work for five (5) consecutive days without the consent of the employer; is terminated; or finishes the labor or services more than thirty (30) days earlier than specified in the Petition. It is also important to note that employers are precluded from collecting a placement fee or other compensation from an H-2A worker as a condition of employment.
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