America is home to some of the world’s most fertile farm land. In addition to contributing to the global food trade, American farms provide opportunities to hard working immigrants stateside. While there are many types of temporary visas available for foreign nationals seeking work in the U.S., the H2A visa was designed specifically for agricultural workers. This page offers some basic information on the H-2A visa, as well as how to apply for one. Hopefully foreign workers and their U.S. employers will be able to decide if they should consult with an immigration attorney. The following topics are covered on this page:
- H2A visa basics
- Labor certification
- Applying for an H-2A visa
- Can my family join me?
- Do I need an immigration attorney?
It’s important to keep in mind that while this page discusses certain legal concepts, it is not intended as a substitute for speaking with a immigration attorney. If you have questions about your eligibility for an H2A visa, contact our office for more information.
H-2A Visa Basics
Because of its temporary nature, more H2A visa are issued each year than their permanent immigration visa counterparts. In many cases, the wait time for an H-2A visa is shorter too.
In order to qualify for an H-2A visa, a worker must have a job offer waiting in the U.S. and the employer must be willing to sponsor the foreign national’s petition for a visa. The work being offered must be agricultural and seasonal in nature. Agricultural work includes any number of activities such as:
- Livestock rearing
- Forestry & lumbering
- Packaging of agricultural products
- Processing of agricultural products
The term “seasonal” is typically defined as being tied to an annual event, such as a short growing cycle, which requires additional labor far beyond normal operations.
The term “temporary” meanwhile is defined as an employment need not lasting longer than one year. In some instances, extensions will be granted to certain workers. The maximum amount of time granted by an H2A visa is three years, and each extension request involves a separate labor certification (see section on labor certification below).
Persons who have been in the U.S. for the maximum amount of time allowed by an H-2A visa must leave the country for a continuous period of three months before seeking readmission under H2A visa status.
In addition to offering specific types of seasonal work, the employer is responsible for providing housing, transportation and food to the seasonal employees.
According to statistics maintained by the U.S. Department of State, the number of H visas issued between 2011 and 2015 increased by more than 50 percent. However, as recent media reports have noted, delays have been occurring with increased frequency in recent years leading to monetary losses for the nation’s farming industry. To get more detailed information about your prospects for obtaining an H2A visa, contact our office to see if we can help.
The process of obtaining an H2A visa includes the added step of obtaining labor certification. The employer-sponsor files an application for certification through the US Department of Labor. This step was designed to ensure that there aren’t already enough U.S. workers willing, able and qualified to do the seasonal temporary work. The purpose of labor certification is to make certain that H-2A visa workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Applying for an H2A visa
Once labor certification is approved, the employer-sponsor files a Petition for a Nonimmigrant Worker (Form I-129). This is done through US Citizenship and Immigration Services (USCIS). Once the petition is approved, the prospective worker outside the country is eligible to apply for a visa at a U.S. Embassy or consulate.
Once this step is completed, the worker may seek entrance into the country.
Can My Family Join Me?
Generally speaking, yes. Spouses and unmarried children (21 and younger) of H-2A visa seekers are eligible to apply for temporary admission to the U.S under H-4 nonimmigrant classification. Under this classification, family members are not eligible to seek employment for work in the U.S.
Do I Need An Attorney?
Foreign nationals and U.S. employers are not required to obtain legal counsel when petitioning for nonimmigrant visas. However, we highly recommend it. Filing for an H2A visa can be complex and challenging as multiple federal agencies are involved. A qualified immigration attorney’s job is to guide applicants through the process and avoid costly or time-consuming filing errors at the same time. It’s important to remember that simple filing errors can lead to a denial of application. If you have questions about your eligibility for an H-2A visa, contact our office for more information.