H-2A visa program

In this new blog you will learn about the benefits of the H-2A nonimmigrant visa program for temporary foreign agricultural workers in the United States.

In general, any foreign national can apply for a visa, but failure to do so correctly can lead to its denial. Our Immigration lawyers in New Jersey have extensive experience assisting with H-2A visa procedures.

For complete legal advice, we invite you to contact Curbelo Law through one of the different customer service channels.

What Is The H-2A Visa Program And What Benefits Does It Provide?

The H-2A program allows eligible US employers and/or agents to bring foreign national workers to the United States to temporarily fill agricultural jobs.

As with the H-1B visa, this program requires a US employer or agent to file the foreign national visa petition.

What Type Of Visa Is The H-2A?

The H-2A visa is a type of nonimmigrant visa, this means that it is temporary. This visa belongs to the category of temporary workers in the United States and once the national foreigners end their employment, they must leave the country.

Did you like the US and would you like to be a lawful permanent resident? Learn how to get a Green Card to become a US resident.

How Does The H-2A Visa Work?

The H-2A visa program works on a sponsorship basis. This means that in order for a national foreigner to obtain it, they first require a petition by a US employer for a job in the US agricultural sector.

There are many ways to enter the US legally. We invite you to know the requirements to enter the United States legally. 

What Benefits Does The H-2A Visa Have In 2023? 

The benefits of the H-2A visa program are extensive. These are:

• Foreign national workers on an H-2A visa are covered by US wage laws, workers’ compensation, and other labor standards.
• Family members of the H-2A visa holder may accompany them and stay in the United States temporarily.
• The salary is as high as those offered for an American worker.
• While the visa is in effect, it allows holders to enter and leave the United States without restriction.
• The visa holder may request an extension of their stay and/or a renewal of their labor certification.
• Employers must provide free accommodation to foreign national workers who cannot return home at the end of the day.

Spouses and unmarried children under the age of 21 of the H-2A holder will obtain H-4 visa classification. The H-4 visa allows them to enter and stay in the US temporarily, but they will not be able to work or get a job under that status. 

Are you a dependent of the visa holder and want to work in the US as well? You may be eligible for a worker visa. Review our publication on the different types of US visas to learn about your job possibilities. 

H-2A Visa Limitations

Although the benefits of the H-2A visa are often attractive, this visa also has its limitations. These are:

• Temporary work should not be for more than one year.
• The employer is required to fill out an application to hire temporary agricultural employees.
• Employers must allow at least 45 days for the application to be processed.
• To get the application approved, employers must show that they do not have enough available US labor.
• Employers must be able to prove the need to hire a foreign national worker. 
• Dependents of the H-2A visa holder will not be allowed to work in the US.

What Is The Difference Between An H-2A And H-2B Visa?

The H-2A visa is issued only to temporary agricultural workers to fill agricultural jobs on a temporary basis, for which no US workers are available. 

The H-2B visa, on the other hand, is granted to non-agricultural workers to perform temporary or seasonal work, especially when there is a shortage of US workers. 

Now that you know what the H-2A and H-2B visas are, you may be interested in reading our article on how to obtain the US H-2B visa for non-agricultural workers.

What Is Needed To Apply For An H-2A Visa?

The requirements to qualify for an H-2A visa depend primarily on the petitioner, that is, the US employer or agent. Such requirements are:

• Offer a temporary job.
• Demonstrate that there are not enough available US workers who are qualified, able, or willing to perform the temporary job offered.
• Demonstrate that the hiring of H-2A employees does not affect the wages and working conditions of US workers in similar activities.
• Submit to USCIS a current Temporary Work Certification issued by the Department of Labor (DOL) together with the H-2A petition.

Not very knowledgeable about DOL-issued labor certifications? Don’t worry, there are several types of certificates. For example, you may be interested in our article on PERM labor certification step by step.

What Are The H-2A Employer Requirements?

Owners of a farm or agricultural business may qualify to petition for a foreign national worker through an H-2A visa as long as they meet the following requirements:

• Own and operate an agricultural business located in the US.
• Possess a valid Federal Employer Identification Number (FEIN).
• Have the ability to hire, supervise, pay, and fire workers as needed.
• The work must be of an agricultural nature or provide agricultural services such as harvesting, growing, or producing produce for the harvest.
• Have a full-time workforce (at least 35 hours or more per week)
• The work is temporary or associated with a particular season, event, or pattern, such as a crop cycle.
• The job usually lasts 10 months or less.

What Is The Application Process For An H-2A Visa?

The process to apply for an H-2A visa program consists of 3 steps:

1. The US employer or agent must file the temporary labor certification application with DOL.
2. Once the temporary labor certificate is received, the U.S. employer or agent must file Form I-129, Petition for a Nonimmigrant Worker, with USCIS.
3. Once USCIS approves Form I-129, prospective H-2A foreign national employees outside of the US must:
   1. Submit the H-2A visa application to the Department of State (DoS) located at a US embassy or consulate in your country of origin. 
   2. Apply for admission to the US under the H-2A classification with Customs and Border Protection (CBP) at a US port of entry. 

Documentation Required For The Application

• Form I-129. It must be filed with USCIS by the US employer or agent.
• Form ETA-750A , application for foreign labor certification. Must file with DOL.
• Form ETA-790, Request for Employees for Agriculture and Food Processing. Must be filed by employer with DOL.

Notifications To USCIS Regarding The H-2A Visa

There are certain notices that employers should be aware of. These are:

Notifications About Employment Status

H-2A foreign national worker petitioners must notify USCIS within two business days of the following situations (in the event that these happen):

• Failure to Appear: The H-2A visa worker fails to report to work within 5 days of:
  • The start date of your employment stipulated in the application for the H-2A visa, or
  • The start date stipulated by the employer.
• Absence: The H-2A visa worker was absent without prior notice from work for a consecutive period of 5 business days without the prior consent of his or her employer.
• Termination: The workers with the H-2A visa are fired before the end of their employment or the services for which they were hired.
• Early termination: The workers with an H-2A visa ends the work or services for which they were hired before the 30-day period established in the application.

Information To Include In The Notification

• The reason for which it is being notified. For example, if the worker was fired or did not show up for work.
• Evidence on notification.
• The USCIS receipt number of the approved H-2A application.
• The data of the petitioner, including:
  • Name.
  • Address.
  • Phone number.
  • Employer Identification Number (EIN).
• Employer Information (If different from petitioner)
  • Name.
  • Address.
  • Phone number.
• Worker data under the H-2A classification.
  • Full name.
  • Place of birth.
  • Date of Birth.
  • Most recent address and phone number.

Additionally, to help USCIS identify the H-2A worker, the following must be submitted for each worker:

• Their Social Security number.
• Their visa number.

If USCIS is not notified or the petitioner fails to comply with any of the above requirements, they may be required to pay $10 for each instance of noncompliance.

Notification On Payment Of Fees

Petitioners, placement agents, recruiters, or the like may not charge an H-2A visa worker a job placement fee or any other compensation as a condition of getting that job. 

If you face a situation like this, we recommend contacting the law firm of Curbelo Law.

How Long Does The H-2A Visa Last?

The H-2A visa has a maximum duration of 3 years. However, USCIS may sometimes grant the H-2A visa up to the maximum length of stay authorized in the temporary labor certification. Note that:

• The period of stay can be increased by one year at a time.
• Requests for extension of stay must be submitted together with a new valid temporary work certificate, which covers the period of extension requested. 
• Individuals who have held H-2A nonimmigrant status for a total of 3 years must depart and remain outside the US for a period of 3 years without interruption before reapplying for another H-2A visa. .
• Previous time elapsed for an H or L visa counts toward the total amount of the H-2A visa.

Some periods outside the US affect the authorized stay of the H-2A visa and may not count towards the 3-year limit. Review the section on how to calculate the period of interrupted stay for the USCIS H-2A visa.

Is There A Limit On The Number Of H-2A Visas Issued?

There is no limit to the number of H-2A visas issued each year. In fact, in fiscal year 2021, the DOL certified more than 317,000 temporary agricultural jobs for workers with H-2A visas. 

This was 15% more than fiscal year 2020, with around 275,000 agricultural employment certifications for workers with H-2A visas.

What Are The Countries That Qualify For An H-2A Visa?

The H-2A visa is only issued to foreign agricultural workers who are citizens of one of the following countries:

• Germany.
• Andorra.
• Argentina.
• Australia.
• Austria.
• Barbados.
• Brazil.
• Brunei.
• Bulgaria.
• Belgium.
• Canada.
• Chili.
• Colombia.
• South Korea.
• Costa Rica.
• Croatia.
• Denmark.
• Ecuador.
• The Savior.
• Slovakia.
• Slovenia.
• Spain.
• Estonia.
• Finland.
• Fiji.
• France.
• Grenade.
• Greece.
• Guatemala.
• Haiti. 
• Honduras.
• Hungary.
• Ireland.
• Iceland.
• Mauritius Islands. 
• Solomon Islands.
• Israel.
• Italy.
• Jamaica.
• Japan.
• Kiribati.
• Latvia.
• Liechtenstein.
• Lithuania.
• Luxembourg.
• North Macedonia.
• Madagascar.
• Malt.
• Montenegrin.
• Mozambique.
• Mexico.
• Monaco.
• Nauru.
• Nicaragua.
• Norway
• New Zealand.
• Panama.
• Papua New Guinea.
• Paraguay.
• Netherlands.
• Peru.
• Poland.
• Portugal.
• United Kingdom.
• Czech Republic.
• Republic of Cyprus.
• Dominican Republic.
• Romania.
• San Marino.
• St. Vincent and the Grenadines.
• St. Lucia.
• Serbian.
• Singapore.
• South Africa.
• Sweden.
• Swiss.
• Thailand.
• Taiwan.
• Timor-Leste.
• Turkey.
• Tuvalu.
• Ukraine.
• Uruguay.
• Vanuatu.

If you are looking for more information on this, please see the following link to USCIS .

What Is The Processing Time For An H-2A Visa?

Currently, the processing time for an H-2A visa is approximately 70 to 90 days. 

It is important that the employer files the petition at least 60 days before the foreign national worker is needed. This process is lengthy, so allow sufficient processing time for application error corrections. 

How Much Does The H-2A Visa Program Cost?

The following costs are an estimate of what it may cost you to hire foreign national employees under the H-2A visa program:

• Labor Certification Processing: $100, plus another $10 per certified worker (not to exceed $1,000).
• Filing fee: $460.
• H-2A visa application: $296, this fee is divided into:
  • Consulate fee: $190 per worker.
  • Border stamp fee: $6 per worker.
  • Agent fees: $100 per worker.
• Transportation from the country of origin to the workplace: Between $400 and $650 per worker (this cost varies depending on the country of origin).
• Association Dues (if applicable): $200.
• Living expenses: Approximately $9,000 to $13,000 per worker.

Curbelo Law Helps you To Apply For The H-2A Visa

Like the H-1B visa, the H-2A visa is a nonimmigrant visa, so it is only valid for a short period of time. Despite the benefits of the H-2A visa program, navigating this process can be complex, so it is important to enlist the help of an immigration attorney.

At Curbelo Law you will find attorney Carolina T. Curbelo, who has more than 10 years of experience helping aliens obtain an American visa. 

To contact the Curbelo Law firm you can call us directly or send us an email to schedule an appointment at their Ridgewood office or online.