U.S. vineyards and wineries that struggle to fully staff their operations with U.S. workers can hire foreign nationals through several visa programs. Whether you are an employer or a worker in search of a job in the wine industry, the visa options available will depend on the position along with the worker’s qualifications and nationality.
H-2A and H-2B Visa Programs
The H-2A and H-2B visa programs apply to seasonal and other temporary positions requiring little or no formal education. To successfully bring foreign workers aboard through one of these programs, employers must be able to demonstrate that the work is in fact temporary; that they tried but failed to recruit U.S. workers to fill the roles; and that hiring foreign laborers will not harm similarly situated U.S. workers. Further, the laborers must come from eligible countries, as designated by the Department of Homeland Security. H-2A and H-2B visas can be approved for up to a year initially, and can be extended in one-year increments, not to exceed three years total.
While the two visa programs have many similarities, they have several important differences.
Agricultural versus Non-agricultural Workers
H-2A visas are specifically for agricultural workers, which makes them appropriate for vineyard workers that perform tasks such as planting, cultivating or harvesting grapes. The H-2B visa program applies to non-agricultural positions and would be appropriate for a host of workers, such as tasting room servers, kitchen or housekeeping staff.
H-2B Visa Cap
Another important difference is that while H-2A visas are unlimited, H-2B visas are capped each year. Because demand for H-2B visas outstrips supply, spots are awarded by lottery. In a typical year, H-2B visas are limited to 66,000 in total, with half reserved for workers with job start dates from October 1-March 31 and the other half allotted to workers beginning work from April 1-September 30. Due to high demand from U.S. employers, 35,000 additional H-2B visas were made available for positions beginning before September 30, 2022.
H-2A Housing Requirement
Unlike the H-2B visa program, employers are required to provide housing at no cost to H-2A workers who cannot reasonably return home at the end of their shift each day. In addition, the employer must provide adequate kitchen facilities for workers to prepare their own meals or provide three meals a day at no more than a Department of Labor (DOL)-approved cost. Further, H-2A employers must guarantee workers that they will be paid for at least 75 percent of the workdays in the contract period.
H-1B Visa Program
For positions requiring specialized knowledge and education, such as winemaker or director of viticulture, the H-1B visa program may be a good fit.
H-1B visas allow U.S. employers to temporarily fill specialty occupations with foreign workers, if they can show they were unable to recruit workers domestically or that hiring a foreign worker will not harm similarly employed U.S. workers. The position must normally require at least a U.S. bachelor’s degree or the foreign equivalent, and the foreign worker must hold a bachelor’s degree or its equivalent in a field related to the position.
As with H-2B visas, the H-1B program is capped, and it is highly competitive. In a given year, applications can exceed 200,000 for just 85,000 visas, which include 20,000 spots for advanced degree professionals who graduated from a U.S. university. H-1B workers can be admitted for an initial period of up to three years, and the visa can be extended for up to three additional years.
TN Visa Program
Under the special economic relationship created by the North American Free Trade Agreement, Canadian and Mexican citizens in certain professions can apply for TN nonimmigrant status if they have a job offer from a U.S. employer. The list of TN visa-eligible positions includes a few that may be applicable to a vineyard, such as “agriculturalist with a bachelor’s degree” and “scientific technician/technologist.” TN nonimmigrant visas are valid for up to three years and can be extended in yearly increments. TN visas are not capped, and the process is generally much less cumbersome than other employment-based visa programs.
Employment-Based Green Cards
Vineyards may opt to sponsor certain noncitizen workers for employment-based green cards, which are divided into “preference” categories. Third-preference (EB-3) is the most inclusive category, applying to skilled workers, professionals and other workers with a full-time, non-seasonal job offer. However, EB-3 visas are limited each year, and the process can be very lengthy.
Employers must first receive permanent labor certification for the position from the DOL and then petition on behalf of the prospective employee with U.S. Citizenship and Immigration Services. Unlike the H-2B and H-1B programs, which use a lottery system, visa applicants are assigned a priority number and must wait for their number to come up for their visa application to be processed. Priority numbers vary by country, and the wait for an EB-3 visa can be several years for applicants from certain countries.
Bolour/Carl Can Help
Whether you are a vineyard/winery looking to hire foreign nationals or a foreign national worker with a job offer from a U.S. employer, the employment-based visa lawyers at Bolour/Carl can help you determine the best visa program to meet your needs and expertly guide you through the complex H-2A, H-2B, H-1B, TN or PERM processes. Contact Bolour/Carl Immigration Group at 323-857-0034 or [email protected].
