What is the H-2A Visa?
The H-2A visa allows agricultural workers to temporarily come to the United States for the purpose of providing agricultural labor. The H-2A visa is available only to agricultural workers when a farmer is in need of seasonal or temporary workers for planting, cultivating, and harvesting crops but there are too few domestic workers to do the work. Thus, the H-2A visa is employer (farmer) driven.
Who Qualifies for the H-2A Visa?
In order for a H-2A visa to be granted, both the farmer who needs temporary workers and the workers themselves must meet certain criteria to qualify for the H-2A visa.
Farmers or employers who seek out H-2A temporary workers may only petition for such workers if they meet the following criteria:
- The job offered is temporary or seasonal;
- The employer can show that there are not enough U.S. workers who are able, willing, qualified, and available to do the work;
- The employment of H-2A workers will not adversely impact the wages and working conditions of U.S. workers who are similarly employed;
- The employer must submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition unless emergent circumstances exist;
- The employer’s place of business must be physically located in the U.S.;
- The employer must have a Federal Employer Identification Number (FEIN);
- The employer must have the ability to hire, pay, fire, supervise, or otherwise control the work of the workers;
- The work must consist of agricultural labor (planting, raising, cultivating, harvesting, etc.);
- The work must be full-time of at least 35 hours or more per week;
In order to be eligible for the H-2A visa, a worker must be from one of several countries approved by the Department of Homeland Security:
- Costa Rica
- Czech Republic
- Dominican Republic
- El Salvador
- North Macedonia
- The Netherlands
- New Zealand
- Papua New Guinea
- San Marino
- Solomon Islands
- South Africa
- South Korea
- St. Vincent and the Grenadines
- United Kingdom
What is the Process to Obtain a H-2A Visa?
The process to obtain a H-2A visa is an employer/farmer driven process because the issuance of H-2A visas is based on the needs of farmers due to a shortage of agricultural workers.
The steps to obtain H-2A visas are discussed below.
Step One: Employer Applies for Domestic Job Order with State Workforce Agency
The employer seeking workers must prepare and submit an agricultural job order, Form ETA-790/790A to the State Workforce Agency (SWA) in the employer’s state, where the work will be performed. This must be done 60-75 days before the start date of work. Once Form ETA-790 is submitted, the SWA will review the job order and begin recruitment of U.S. workers.
Step Two: Employer Submits Temporary Labor Certification Application
The employer must apply for a temporary labor certification using Form ETA-9142A, Application for Temporary Employment Certification and Appendix A with the Department of Labor’s Chicago National Processing Center (Chicago NPC) using the Department of Labor’s FLAG System. This must be done 45 days or more before the start date of work. Once the Form ETA-9142A is submitted, the Chicago NPC will review the application and provide additional instructions for completing the temporary labor certification process.
Step Three: Recruit U.S. Workers
After submitting the labor certification application, the employer must attempt to recruit U.S. workers for the work. The Chicago NPC will notify the employer of where and when to advertise, what content to include in the advertisements, and how to prepare the recruitment report. Recruitment must begin when the employer receives the Notice of Acceptance from the Chicago NPC and must continue until all the recruitment steps are complete.
Step Four: Submit Additional Documentation
When the employer is done with the recruitment process, the next step is to submit any additional documents to the Chicago NPC that it requests, so it may make a final determination. Additional documentation must be submitted no fewer than 30 calendar days before the start date of work.
Step Five: Employer Submits Form I-129, Petition for Nonimmigrant Worker
Once an employer receives temporary labor certification from the Department of Labor, Form I-129, Petition for Nonimmigrant Worker must be submitted to the United States Citizenship and Immigration Services (USCIS). The temporary labor certification must be submitted with Form I-129 as initial evidence.
Step Four: Prospective Workers Apply for the H-2A Visa
After the USCIS approves Form I-129, workers who want to come to the United States for agricultural work must apply for an H-2A visa with the United States Department of State at a U.S. Embassy or Consulate near the worker. After doing so, the worker must seek admission to the U.S. at a U.S. port of entry. Alternatively, the worker may seek admission to the U.S. under H-2A classification directly at a U.S. port of entry if the worker qualifies for admission without a H-2A visa.
What if an Employer Needs Workers Immediately?
If an employer has an immediate need for workers, or it is an emergency, the employer can go through the application process in an expedited fashion.
Emergency filing is available if the farmer/employer needs workers in fewer than 75 days. Under emergency filing, the employer can submit a job order with the State Workforce Agency and apply for a temporary labor certification with the Chicago NPC at the same time. However, the remaining steps are the same as standard filing.
Immediate Need Filing
Immediate need filing is available for employers who need workers in 44 days or fewer. Under immediate need filing, the employer should email the Chicago NPC at email@example.com to ensure there is adequate time to go through the H-2A process before the start date of work. The email subject should read: “H-2A Program Question: Immediate Need for H-2A Workers”.
For How Long is the H-2A Visa Valid?
The USCIS will grant H-2A classification for the period of time authorized by the temporary labor certification. The maximum period of stay is 3 years.
Employers may extend the stay of workers on a current H-2A visa contract. For a short-term extension of less than two weeks, the employer must submit Form I-129, Petition for Nonimmigrant Worker again to the USCIS. For a long-term extension of more than two weeks, the employer must also submit Form I-129 to the USCIS and must send a notice to the Chicago NPC explaining the request for extension.
How Much Does it Cost to Get the H-2A Visa?
The application fee for the temporary labor certification is $100, plus $10 per certified work, not to exceed $1,000.
The filing fee for Form I-129, Petition for Nonimmigrant Worker is $460.
The consulate fee for the H-2A worker is $190 per worker, and each worker must be reimbursed in their first paycheck.
The border stamp fee is $6 per worker and agent fees are approximately $100 per worker.