If you would like to come to the United States to do seasonal or temporary farm work, you may be eligible for an agricultural visa through the H-2A nonimmigrant visa program. Agricultural employers often need to scale up their labor force during certain times of the year, such as growing or harvest season, and they struggle to find domestic workers who are available on a temporary basis. Additionally, farms, ranches, nurseries, orchards, and other agricultural businesses often need temporary workers for projects that are not seasonal in nature. As long as they can demonstrate that they cannot find U.S. workers to perform the work, agricultural employers can temporarily hire foreign nationals who meet certain criteria.
Starting the Process
The first step in the process is for your prospective U.S. employer or agent to apply for and receive a temporary labor certification from the Department of Labor. To do so, the petitioner must first file an agricultural job order (Form ETA-790/790A) with the State Workforce Agency in the state where the work will be performed. This must be done at least two months before your expected start date. Next, the petitioner must submit Form ETA-9142A to the Department of Labor’s Chicago National Processing Center, at least 45 days before work begins. Petitioners must make an effort to recruit U.S. workers, and they will be given instructions on where and when advertisements must be placed and the required content of the ads. If the application is approved, your employer will receive a temporary labor certificate.
Next Steps
Once receiving a temporary labor certificate, your employer can file Form I-129, Petition for Nonimmigrant Worker with U.S. Citizenship and Immigration Services (USCIS). After USCIS approves your employer’s Form I-129, you will be notified to submit your H-2A visa application with the U.S. Department of State (DOS) and attend an interview at a U.S. Embassy or Consulate in your country.
Approved Countries
H-2A petitions may only be approved for nationals of eligible countries, as designated by the Department of Homeland Security (DHS). Effective Jan. 19, 2021, there were 81 approved countries on the list, which span all continents and include Canada and Mexico. China, Russia, and India are some of the notable exclusions. The list is fluid; Mongolia, Samoa, and Tonga were recently removed because they were failing to meet program standards, according to DHS. If your country of origin is not on the list, your employer could send a written request to the DHS’s Office of Policy or the DOS of the particular U.S. embassy or consulate. DHS, in consultation with DOS, may consider adding countries to the list based on a number of factors.
Period of Stay
If you are granted an H-2A visa, it will generally be good for as long as the temporary labor certification is authorized. Your visa can be extended for periods of up to one year, but the H-2A classification cannot exceed three years (under certain circumstances, some of the time you spend outside of the U.S. may be deducted from the three-year total). Once you have had H-2A nonimmigrant status for three years, you will have to depart the U.S. and remain outside the country for at least three months before seeking readmission as an H-2A nonimmigrant. Note that any previous time you may have spent in other H or L classifications counts toward your three-year limit.
Family Members
If you are approved for an H-2A visa, your spouse and unmarried children under age 21 may seek admission under the H-4 nonimmigrant classification. However, this status will not permit them to work in the U.S.
Agricultural Workers Adjustment Act
Undocumented agricultural workers who were in the U.S. by Jan. 1, 2021, may become eligible to apply for green cards immediately if the Agricultural Workers Adjustment Act is passed. As part of the sweeping immigration reform bill recently introduced in Congress, the Act would allow farmworkers who pass background checks and who meet certain other criteria, along with their families, to apply for green cards immediately. According to the bill, the workers must be able to show they performed agricultural labor or services for at least 2,300 hours or 400 workdays over the last five years.
If you would like to speak to an agricultural visa lawyer to learn more about the H-2A visa program, contact us at 323-857-0034 or [email protected].
