H-2A Visa Program

What is an H-2A Visa?

Section 218 of the Immigration and Nationality Act authorizes the lawful admission of temporary, nonimmigrant workers into the United States to perform services or labor that are temporary in nature. The H-2A Visa Program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the U.S. to fill temporary agricultural jobs.

H-2A Visa for Temporary Agricultural Workers

The H-2A Visa Program is designed to help American farmers fill farmworker employment gaps by hiring workers from other countries. The program helps employers who anticipate a lack of available domestic workers to bring foreign workers to the U.S. to perform temporary or seasonal agricultural work. This work can include but is not limited to, planting, cultivating, harvesting, or other forms of agricultural labor. The program is intended to benefit farmers, plantation owners, ranchers, nursery owners, and other similar owners.

To qualify for H-2A nonimmigrant classification, the petitioner (employer) must demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to provide the temporary services or labor; that the offered job is temporary or seasonal in nature; that H-2A workers will not adversely affect the wages and the working conditions of similarly employed U.S. workers; and must submit a single valid temporary labor certification from the U.S. Department of Labor (DOL) along with the H-2A petition. If the employer has been affected by a strike, work stoppage, or layoff within 60 days of when work will start, the employer may not qualify for the program.

Who can apply for an H-2A Agricultural Visa?

Each year a list of eligible countries is published by the Department of Homeland Security through what is called a Federal Register notice. Each list is valid for a period of one year. Nationals from these countries are eligible for the H-2A Agricultural Worker Program. Please feel free to contact us if you have any questions about which countries are currently eligible.

Workers can not directly apply for an H-2A visa themselves. Instead, an American employer, agent, or association of Agricultural producers must file a petition for a nonimmigrant worker (form I-129) on behalf of the potential employee.

If the potential employee is in the United States at the time of filing the petition, they will not be able to travel outside the U.S. while it is pending. If the employee is in a foreign country at the time of filing, they will need to apply for the H-2A visa at a U.S. Embassy or Consulate once the petition is approved.

Requirements for H-2A Visa Petitioners

​All of the following requirements must be met by the petitioner and potential foreign worker in order to successfully apply for an H-2A temporary visa.

• The employer must present a foreign worker with a job offer that of a temporary or seasonal nature.
• The employer must agree to pay the temporary worker a wage rate comparable to that of a U.S. worker in a similar position.
• The employer must demonstrate that there is only a temporary need for the services of a foreign worker.
• The employer must demonstrate that there is a legitimate lack of qualified U.S. workers who are able or willing to perform the needed work.
• The employer must demonstrate that the wages and working conditions of U.S. workers employed in similar positions will not be negatively impacted by hiring workers from a foreign country.
• The foreign worker must have a residence in their home country or outside of the United States that they do not have any intention of abandoning to stay in the U.S.
• Agricultural employers can be a corporation, partnership, or individual proprietor.
• The employer must submit a valid temporary labor certification from the Department of Labor with the H-2A visa petition in order to seek approval from the U.S. Citizenship and Immigration Services (USCIS).

Dependents of H-2A Agricultural Workers

Spouses and dependents (unmarried children under 21 years of age) of H-2A visa holders are entitled to H4 status and must observe the same restrictions as the foreign worker. Those with H4 status are not allowed to work in the United States, however.

H-2A Visa Stay Duration

H-2A visas are issued for a period of up to one year. It is possible to extend H-2A visas for two additional years, however. It should be noted, though, that after seeking two extensions, the foreign worker will be required to remain outside of the United States for three consecutive months before they can apply to be admitted again through the H-2A Visa Program.

If you and your employer wish to apply for an extension to your H-2A visa, your employer will be required to renew certification with the Department of Labor regarding the lack of available qualified U.S. Workers.

The employer is required to seek the certification with the DOL regarding the continued unavailability of the United States workers during each extension that is sought.

Under some circumstances, where foreign workers have spent time outside of the United States during their authorized stay on an H-2A visa, they may be able to apply for an extension beyond the three-year limit without waiting three months. If you need assistance with navigating this process, we’d be happy to help.

H-2A Agricultural Visa Employee Compliance

Once granted entrance into the United States, H-2A temporary agricultural workers must meet requirements and work obligations or risk losing their H-2A status. Employers are required to notify the California Service Center by email or regular mail under any of the following circumstances:

• The worker fails to report to the worksite within five days of the start date specified in the work contract.
• The worker leaves employment without giving formal notice and does not report to work for a period of five consecutive working days without the employer’s consent
• The worker is terminated by the employer before the H-2A labor or services are completed.
• The H-2A labor or services are completed more than 30 days prior to the end of the contract period.

Frequently Asked Questions

Below are answers to common questions asked by H-2A visa candidates.

How long can I stay in the U.S. on an H-2A visa?

You will generally be granted H-2A status for as long as the time authorized on the temporary labor certification. Usually this will be one year or less. However, you can apply for an extension for qualifying employment in increments up to one year each. A new, valid temporary labor certification must accompany each extension request. After three years, you must leave the U.S. for at least three months before returning.

Can my family accompany me to the U.S.?

Your spouse and unmarried children under 21 years old may seek admission in the H-4 nonimmigrant classification for the same period as your authorized stay.

Can I travel on an H-2A visa?

Yes, you can travel in and out of the U.S. for as long as your visa is valid.

Can I apply for a change of status while on an H-2A visa?

Yes, you can apply to change your status. It is advisable that you consult an immigration attorney to weigh your options.

Speak with An Agricultural Visa Lawyer At The Bolour / Carl Immigration Group

Please contact us to schedule a no-obligation initial consultation to discuss your H-2A agricultural worker visa needs. Our team of knowledgeable and experienced agricultural visa lawyers is here to answer any questions you may have about obtaining an H-2A non-immigrant worker visa. You can reach our lawyers at our Los Angeles or Palm Springs offices by calling 323-857-0034 or send an email by completing our online form.

We also speak Spanish and Persian for your convenience.

Mistakes To Avoid With H-2A Visas

The H-2A process can be complex and demanding, but your H-2A Agricultural Visa Lawyers an help. At Bolour / Carl Immigration Group, APC, we understand the challenges employers face when hiring foreign agricultural workers. To help you streamline your application process and increase your chances of approval, we’ve compiled a list of common mistakes to avoid:

1. Failing To Submit Accurate And Complete Applications

One of the most critical steps in the H-2A process is ensuring that all application forms are accurately completed. Missing or incorrect information can lead to delays or denials. Always double-check that the information matches supporting documents and is presented clearly.

2. Not Understanding The Labor Certification Requirements

Before applying for H-2A visas, employers must obtain a temporary labor certification from the Department of Labor. This certification proves there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work. Failing to meet any of these labor certification requirements can jeopardize your application.

3. Ignoring Deadlines

Timeliness is crucial in the H-2A visa process. There are specific deadlines for filing the necessary paperwork with both the Department of Labor and U.S. Citizenship and Immigration Services. Missing these deadlines can result in the inability to employ the needed workforce for the season. Fortunately, your H-2A agricultural visa lawyer can keep you in the loop.

4. Overlooking Housing And Transportation Requirements

Employers must provide H-2A workers with free housing that meets federal and state standards and transportation between the workers’ home country and the place of employment, as well as daily transportation to and from the worksite. Neglecting these requirements can lead to serious legal issues and fines.

5. Poor Record Keeping

Maintaining detailed records is essential when employing H-2A workers. This includes keeping track of wages, hours worked, and compliance with working conditions. Poor record-keeping can lead to compliance audits and penalties.

6. Inadequate Worker Recruitment Efforts

Employers must recruit domestic workers before hiring H-2A workers. This involves placing advertisements in local media and cooperating with local workforce agencies. Insufficient efforts in recruiting domestic workers can result in the denial of the labor certification.

7. Not Providing Equivalent Terms To Domestic Workers

Employers must offer terms and working conditions to U.S. workers that are no less favorable than those offered to H-2A workers. This includes wages, hours of work, and housing conditions. Failure to do so can lead to legal challenges and penalties.

9. Misunderstanding Worker Rights And Protections

H-2A workers are protected under U.S. labor laws, and employers are responsible for ensuring these rights are upheld. This includes the right to a safe working environment and the right to be free from discrimination and retaliation. Violating these rights can result in lawsuits and damage to your business reputation.

Your Rights As A Seasonal Agricultural Worker

An H-2A agricultural visa lawyer can help you build a future and protect your rights. At Bolour / Carl Immigration Group, APC, we’ve helped thousands of clients since 1993 – and now we’re ready to help you. Read on to learn more about your rights as a seasonal agricultural worker.

1. Right To Fair Wages

Under U.S. law, all agricultural workers are entitled to receive fair wages for the hours they work. The laws specify minimum wage standards, and employers are required to adhere to these guidelines. Ensure that you understand the wage rates applicable to your job and verify that your paycheck reflects the correct amount. If discrepancies arise, your lawyer can help address and resolve these issues.

2. Safe Working Conditions

Agricultural work can be hazardous. Fortunately, there are strict regulations in place to ensure your working environment is safe. Employers must provide proper training, suitable equipment, and safety measures to prevent accidents and injuries. If your working conditions seem unsafe or if you are injured on the job, it’s important to speak up.

3. Protection From Discrimination

You are protected under federal laws from discrimination based on race, color, national origin, sex, religion, age, disability, or genetic information. Any form of workplace discrimination is illegal and should be reported.

4. Right To Organize

As an agricultural worker, you have the right to join or form a union without fear of retaliation. Unions can negotiate on behalf of workers for better wages, benefits, and working conditions. If you are interested in learning more about how unionization might benefit you, or if you are facing obstacles while organizing, your lawyer can provide legal advice and representation.

5. Access To Medical Leave

If you are employed by a company that meets certain criteria, you may be eligible for medical leave under the Family and Medical Leave Act (FMLA). This act allows workers to take unpaid leave for specific family and medical reasons without the risk of losing their jobs. Understanding these rights can be complex but your legal team can help clarify whether you qualify for FMLA leave and assist in the application process if needed.

6. Protection From Retaliation

It is illegal for employers to retaliate against workers who exercise their legal rights. Whether you have filed a complaint, participated in an investigation, or claimed a right under labor laws, you are protected from any form of punishment or retaliation by your employer. If you suspect retaliation, your H-2A agricultural visa lawyer can help you seek justice.

7. Information And Transparency

You have the right to be fully informed about the pesticides and chemicals you might be exposed to while working. Employers must provide information about the hazards of these substances, along with proper training on how to handle them safely.

If you feel you are not being properly informed or trained, it is important to seek legal help to ensure your health and safety are not being compromised. Bolour / Carl Immigration Group, APC is ready to walk you through your next steps. Contact us today, and see what an H-2A agricultural visa lawyer from our office can do for you.

Contact A Lawyer Today

By avoiding these common mistakes, employers can ensure a smoother H-2A visa application process and avoid potential legal complications. At Bolour / Carl Immigration Group, APC, we specialize in providing comprehensive guidance throughout the H-2A visa process. Get in touch with us today, and see what an H-2A agricultural visa lawyer from our office can do for you.