H-2A: Temporary Agricultural Workers

Are you looking to expand the productivity of your farming enterprise? The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring aliens to the U.S. to fill temporary agricultural jobs. As the prospective employer you must file Form I-129, petition for Nonimmigrant Worker, on a prospective worker’s behalf. Feel free to contact us for a Free Consultation to determine if you are eligible and begin the process of bringing in Temporary Agricultural Workers for your farming enterprise.

Who May Qualify for H-2A Classification?

To qualify for H-2A nonimmigrant classification, the petitioner must:

  • Offer a job that is of a temporary or seasonal nature.

  • Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

  • Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

  • Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-21 petition. (A limited exception to this requirement exists in certain “emergent circumstances”

 

What are H-2A Program Process Steps?

Step 1: Petitioner submits temporary labor certification application to the U.S. Department of Labor (DOL). Before requesting H-2A classification from USCIS, the petitioner must apply for and receive a Temporary Labor Certification for H-2A workers from DOL.

 

Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2A employment from DOL< the petitioner must file Form I-129 with USCIS. With limited exceptions, the petitioner must submit original temporary labor certification as initial evidence with Form I-129

 

Step 3: Prospective workers outside the U.S. apply for visa and/or admission. After USCIS approves Form I-129, prospective H-2A workers who are outside the U.S. must:

  • Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S> embassy or Consulate abroad and then seek admission to the U.S. with U.S. Customs and Border Protection (CBP) at a U.S. post of entry; or

  • Directly seek admission to the U.S. in H-2A classification with CBP at a U.S. port of entry, if a worker does not require a visa in cases where an H-2A visa is not required.

 

Period of Stay

Generally, USCIS may grant H-2A classification for up to the period of time authorized on the temporary labor certification. H-2A classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A classification is 3 years.

A person who has held H-2A nonimmigrant status for a total of 3 years must depart and remain outside the U.S. for an uninterrupted period of 3 months before seeking readmission as an H-2A nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2A time.

Exception: Certain periods of time spent outside the U.S. may “interrupt” an H-22A worker’s authorized stay and not count toward the 3-year limit.

Family of H-2A Workers

 

An H-2A worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the U.S. while in H-4 status.

What are the H-2A Eligible Countries List?

Except as noted below, H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security (DHS) has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A program.

The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries in a Federal Register notice. Designation of eligible countries is valid for one year form publication.

As of January 19, 2019, nationals from the following countries are eligible to participate in the H-2A program:

  • Andorra

  • Argentina

  • Australia

  • Austria

  • Barbados

  • Belgium

  • Brazil

  • Brunei

  • Bulgaria

  • Canada

  • Chile

  • Colombia

  • Costa Rica

  • Croatia

  • Czech Republic

  • Denmark

  • Dominican Republic

  • Ecuador

  • El Salvador

  • Estonia

  • Fiji

  • Finland

  • France

  • Germany

  • Greece

  • Grenada

  • Guatemala

  • Honduras

  • Hungary

  • Iceland

  • Ireland

  • Israel

  • Italy

  • Jamaica

  • Japan

  • Kiribati

  • Latvia

  • Lichtenstein

  • Lithuania

  • Luxembourg

  • Macedonia

  • Madagascar

  • Malta

  • Moldova

  • Mexico

  • Monaco

  • Mongolia

  • Montenegro

  • Mozambique

  • Nauru

  • The Netherlands

  • Nicaragua

  • New Zealand

  • Norway

  • Panama

  • Papua New Guinea

  • Paraguay

  • Peru

  • Poland

  • Portugal

  • Romania

  • Samoa

  • San Marino

  • Serbia

  • Singapore

  • Slovakia

  • Slovenia

  • Solomon Islands

  • South Africa

  • South Korea

  • Spain

  • St. Vincent and the Grenadines

  • Sweden

  • Switzerland

  • Taiwan*

  • Thailand

  • Timor-Leste

  • Tonga

  • Turkey

  • Tuvalu

  • Ukraine

  • United Kingdom

  • Uruguay

  • Vanuatu

The Secretary of Homeland Security may consider adding a country to the Eligible Country List upon receiving a recommendation from DOS or a written request from an unlisted foreign government, an employer that would like to hire nationals of an unlisted country in H-2A status, or another interested party or parties. When designating countries to include on the list, the Secretary of Homeland Security, with the concurrence of the Secretary of State, will take into account factors including, but not limited to:

  1. The country’s cooperating with issuing travel documents for citizens, subjects, nationals and residents of that country who are subject to a final order of removal;

  2. The number of final and unexecuted (meaning completed but not yet carried out) orders of removal against citizens, subjects, nationals and residents of that country;

  3. The number of orders of removal executed against citizens, subjects, nationals and residents of that country; and

  4. Other factors as may serve the U.S. interest.

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