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H-2A Visas: Temporary Agricultural Workers

What is an H-2A Visa? 

H-2A visa classification allows U.S. employers or U.S. agents to bring foreign national workers from certain and approved countries into the United States for temporary agricultural work under specific regulatory requirements.

Who Qualifies for H-2A Classification?

To qualify for H-2A nonimmigrant classification, U.S. petitioners wishing to bring in foreign nationals for temporary agriculture work must:

  • Offer a job that is of a temporary or seasonal nature;
  • Demonstrate that there are not enough U.S. willing, able, qualified, and available workers 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;
  • Submit a valid temporary labor certification from the U.S. Department of Labor with the H-2A petition. There is a limited exception to this requirement in certain “emergent circumstances.” For specific details of the limited exception rule, 8 CFR 214.2(h)(5)(x) or speak with one of our dedicated immigration attorneys.

H-2A Application Process

  • Temporary Labor Certification Application: Before requesting H-2A classification from the United States Citizenship and Immigration Services (“USCIS”), the H-2A petitioner must apply for and receive a temporary labor certification, as mentioned above.
  • Form I-129 to USCIS: After receiving a temporary labor certification for H-2A employment, the petitioner must file Form I-129, including the original temporary labor certification as initial evidence.
  • Prospective Worker’s Application and Admission: After an approved Form I-129, prospective H-2A workers who are outside the United States must:
    • Apply for an H-2A visa with the U.S. Department of State through the U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
    • Directly seek admission to the United States 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.

H-2A Periods of Stay and Work Requirements

USCIS will usually grant H-2A classification for up to the period of time authorized on the temporary labor certification. The H-2A classification may be extended for qualifying employment in 1 year increments. Each extension request must include a new, valid temporary labor certification that details the requested time. The maximum period of stay in H-2A classification is 3 years. After holding the H-2A classification for the maximum of 3 years, applicant may reapply for H-2A status admission, but only after having remained outside of the United States for an uninterrupted period of 3 months.

H-2A classified workers are required to abide by certain standards and parameters of the classification or risk losing their H-2A status. The petitioning employer is responsible for reporting H-2A violations to the USCIS. Violations include:

  • No show: The H-2A worker fails to report to work within 5 work days of the latter of:
    • The employment start date on the H-2A petition, or
    • The start date established by the employer;
  • Abscondment: The H-2A worker leaves without notice and fails to report for work for 5 consecutive workdays without the consent of the employer;
  • Termination: The H-2A worker is terminated before completing of  the H-2A labor or services for which he or she was hired; or
  • Early Completion: The H-2A worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2A petition.

H-2A Family Eligibility

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

Why Peek & Toland? 

The processes for obtaining, keeping, and extending H-2A visa status is complex, but our expertise of the H-2A visa program will allow us to assist you in completing the necessary forms, staying compliant, and possibly applying for extended time and readmission. Don’t risk denials or delays to work within the United States.

The legal team at Peek & Toland consists of hard-working, dedicated professionals who have been practicing for many years in immigration law. We have experienced attorneys who are well-versed in the specific procedures in multiple embassies and consulates around the globe, and can assist you in starting your trade relations with the U.S. right away. 

 Call us today so you can get started on your trade enterprise at (512) 474-4445.

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