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DownloadLearn more about how the immigration process works and help you with your immigration concerns and questions. The Charleston USA Immigration Law Center is here to support you in your goal to become a United States citizen.

H-2A Visa, Agricultural Workers

This is a non-immigrant program for only seasonal agricultural workers on a temporary basis. The U.S. future employer, a recruiter or a U.S. agent must process the petition. And frequently, any filing for a renewal must commence immediately after the approval which takes approximately 8 months. Since it is temporary the visa will not lead to a permanent residency (green card). Also, the USCIS puts an annual cap on the number of visas issued each year.

Employer Must Show:

  • There are not enough U.S. workers available who can fulfill its requirements at the location and time needed,
  • Temporary employment of this kind will not adversely affect the wages and working condition of similar employed U.S. workers,
  • The offered job is a temporary, seasonal, agricultural job,
  • It first obtained a Temporary Labor Certificate from the U.S. Department of Labor (DOL),
  • It offers the same wage to the foreign worker that it would pay a U.S. worker. The higher of the Prevailing Wage or the minimum federal or state wage,
  • It will pay the reasonable cost of the worker (not his spouse & children) to return to its foreign home after fulfilling the work period,
  • It will provide worker's compensation insurance for the worker,
  • It will provide worker cost of transportation form his temporary U.S. home to the work place,
  • It will provide temporary housing if no commute to work is involved,
  • It will provide the worker three meals a day,
  • It will provide the worker all necessary tools, equipment and supplies to do its job.

Eligible Worker Home Countries

Workers from some 63 countries are eligible to participate in this program. There are some exceptions for workers of non- participating countries. But they should not be listed on a petition with participating country workers. Currently, these countries are:

  • Argentina, Australia, Austria
  • Barbados, Belize, Brazil, Bulgaria
  • Canada, Chile, Costa Rica, Croatia
  • Dominican Republic
  • Ecuador, El Salvador, Estonia, Ethiopia
  • Fiji
  • Grenada, Guatemala
  • Haiti, Honduras, Hungary
  • Iceland, Ireland, Israel, Italy
  • Jamaica, Japan
  • Kiribati
  • Latvia, Lithuania
  • Macedonia, Mexico, Moldavia, Montenegro
  • Nauru, The Netherlands, Nicaragua, New Zealand, Norway
  • Panama, Papua New Guinea, Peru, The Philippines, Poland
  • Romania
  • Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland
  • Thailand, Tonga, Turkey, Tuvalu
  • Ukraine, United Kingdom, Uruguay
  • Vanuatu

Period of Stay, Renewals & Portability

The visa is valid for 1 year and can be renewed year by year for up to 3 years. Each year requires re-certification. After 3 years, the worker must depart the U.S. for 6 months before being eligible to apply again. Previous time spent in the U.S. in another H or L classification counts toward the 3 year maximum stay. Employees under certain circumstances can change employers via portability.

Spouse and Children

A spouse and children under 21 can also enter under the H-4 visa classification, they cannot work but they are permitted to attend school.

Filing Procedure

  • U.S. Employer, agent or recruiter files an Application for Alien Employment Certification with the state workforce agency where the employment will be and the U.S. Department of Labor (DOL) at least 45 days before when the worker is needed,
  • Then, after conduct a recruitment for U.S. workers satisfactory to the (DOL) so it will issue its Certificate if no U.S. workers can be employed,
  • U.S. employer submits to the USCIS the original Certificate along with a USCIS form I-129, accompanying documentation and pays all required filing fees,
  • Upon approval and the USCIS forwarding of the approval to the appropriate U.S. Embassy or Consulate, notification to the worker, the worker shall apply for its H-2A visa.

Employer Notifications to the USCIS

After approval the employer must notify the USCIS if;

  • The worker is a no show,
  • The worker arrives and then absconds without notice to the employer,
  • The worker is terminated with or without cause,
  • The workers job is terminated 30 or more days before the completion date,

The employer faces penalties for failure to make the required report.

Contact us to learn more about this visa, answer your questions and have us process your applications.

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
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