The H-2A visa is a popular visa for certain agricultural workers. If you wish to temporarily work in the United States in an agricultural position, then you may qualify for an H-2A visa.
There are two main types of H-2 visas available to those who wish to temporarily work in the United States:
- H-2A Visa: For agricultural workers
- H-2B Visa: For temporary, non-agricultural workers
In order to qualify for an H-2A visa, your job needs to meet certain requirements, including:
- Seasonal: A “seasonal” position means that the work is within a specific period of time or event
- Temporary: A “temporary” position means that the work does not take more than one year to complete
Many U.S. employers who run farms rely on the H-2A visa program to find the labor needed to complete jobs throughout the year – say, during harvest season.
The United States does not have a cap on H-2A visas. Anyone who applies for the visa and gets approved can come to the United States to work.
Who Qualifies for the H-2A Visa?
Both the employer and the employee need to meet specific requirements to qualify for the H-2A visa program.
H-2A Visa Employer Requirements
- Have an available job position for temporary or seasonal agricultural work
- Can prove that they can hire a foreign worker without negatively affecting the wages or working conditions of U.S. employees in the same sector
- Can prove that there are no U.S. workers willing, qualified, able, or available to work in the available positions
- Have the required documents, fee payments, and petition approvals
H-2A Visa Applicant Requirements
The H-2A Visa is available to foreign workers who fulfill the following requirements:
- Have received a job offer from a U.S. employer offering temporary agricultural work
- Intend to return to their home country after the visa expire
Applicants are also required to be a citizen of one of the countries below:
- Costa Rica
- Czech Republic
- Dominican Republic
- El Salvador
- The Netherlands
- New Zealand
- Papua New Guinea
- The Philippines
- San Marino
- Solomon Islands
- South Africa
- South Korea
- St. Vincent and the Grenadines
Certain countries have been added and removed to this list over time. Citizens of Belize, Samoa, and Haiti, for example, were once able to apply to work in the United States under the H-2A visa program, but they are no longer able to apply.
However, there are exceptions to the country requirements above. An employer who wants to hire an employee from a country not on the list above can send a request in writing to the DHS, provide proof of the foreign worker’s name and citizenship, and provide proof that the United States will benefit from granting an H-2A visa to the individual. If the request is successful, then the DHS may add the applicant’s country to the list above.
How to Apply for an H-2A Visa as an Employer
The H-2A visa application process starts with the employer. An employer who wants to hire foreign workers for seasonal, temporary agricultural positions will need to complete the following requirements:
Certification from the Department of Labor
Employers seeking to hire foreign workers under the H-2A visa program will need to receive certification from the Department of Labor. This is different from other types of visa programs. Employers need to file the following two forms:
Form ETA-790: Agricultural and Food Processing Clearance Order. This form must be submitted to your state’s Workforce Agency approximately 60 to 75 days before you need to hire foreign workers.
Form ETA-9142A: Foreign Labor Certification. Once you have received Form ETA-790 and Form ETA-9142A, you must submit the forms to the Chicago National Processing Center (NPC) approximately 45 days before you need to bring the foreign workers to the United States.
Department of Labor Requirements
The Department of Labor needs to verify that your H-2A visa applicant is not taking away jobs from U.S. workers. To verify that requirement, the Department of Labor will check the following:
Recruitment Efforts to American Workers: Before hiring workers on the H-2A visa, employers need to demonstrate that they made an effort to hire American workers. You may need to provide proof that you advertised your job in newspapers, on TV, or in other media. If you received and rejected American applicants, then you must document the reasons you denied the U.S. applicants.
Fair Wages: You are required to pay foreign workers fair wages. A “fair wage” is defined as a similar wage to what you would have paid a U.S. worker in that same situation. You may need to provide proof that you’re paying minimum wage, the Adverse Effect Wage Rate (AEWR), or the prevailing wage in your region (whichever is the highest). The Department of Labor may have guidelines on which wage you should pay your employees.
Housing: Certain H-2A visa employers are required to provide housing to applicants. You may be required to provide housing if the workplace is far from an area of residence – say, too far to reasonable return to after a working day. The Department of Labor may inspect the housing to verify it complies with Occupational Safety and Health Administration (OSHA) standards.
Transportation: Employers are also required to provide transportation to H-2A visa applicants in certain situations. If 50% of the contract has been completed, for example, the employer needs to reimburse any transportation expenses incurred by the applicant. If the employer is providing housing to employees, then the employer also needs to provide transportation from the jobsite to the housing. If the employee is returning to the place of recruitment at the end of the contract, then the employer must pay for the costs of transportation to return to that place of employment.
The Department of Labor will issue you a Temporary Labor Certification after verifying that you have appropriate working conditions and wages for your foreign workers. Once you have the Temporary Labor Certification, you can proceed with the USCIS petition.
The next step in the H-2A visa process is to petition United States Citizenship and Immigration Services (USCIS) by filing Form I-129. This form comes with a fee of $460. You will need to file this form for each employee you plan on hiring. If USCIS approves your Form I-129, then you will receive Form I-797, at which point the employee can begin the H-2A visa application process.
How to Apply for an H-2A Visa as an Employee
Applying for an H-2A visa is straightforward. The process is similar to any non-immigrant work visa for the United States. You will need to move through the following steps to complete the application process:
Step 1) Complete Form DS-160: This is the standard non-immigrant visa application form that allows you to enter the United States temporarily for business or pleasure. You can find the form online at your embassy’s website.
Step 2) Schedule an Interview: You must complete an interview at your local U.S. embassy or consulate to qualify for an H-2A visa. Once you have submitted form DS-160, you can schedule your interview.
Step 3) Prepare your Documents: You will need to prepare certain documents prior to your interview, including a valid passport, forms I-129 and I-797, your form DS-160 receipt, and a photo meeting the visa photo requirements. You may also be required to provide proof that you intend to return to your home country once your work term is complete (say, proof that you own property back home or proof that you have friends and family back home).
Step 4) Attend the Interview: Visit the U.S. embassy or consulate to complete the interview. Your fingerprints may be taken prior to the interview. The main purpose of the H-2A visa interview is to verify all of the information you provided on your application. The interviewer also wants to verify that you intend to return to your home country once your work term is complete.
How Long Does It Take to Process an H-2A Visa?
H-2A visa processing times vary. Typically, visa processing times change throughout the year. It may take longer to process the visa in the leadup to harvest season, for example, because many U.S. employers are trying to hire foreign workers.
Employers can file their USCIS petition a maximum of 120 days before they need to bring foreign workers to the U.S. under the H-2A visa program. You cannot file sooner than that. It’s recommended that you begin the application process at least 60 days before you need the foreign worker.
How Long Does an H-2A Visa Last?
The H-2A visa is valid for a maximum of one year. However, the employee can extend the visa in certain situations – say, if the project has not been completed.
If you receive a visa extension, then your visa will be extended for one year. You can apply for an extension one more time. The maximum stay in the United States under the H-2A visa is for three years. Once this three year period is complete, you need to return to your home country and remain there for at least three months.
Can I Get a Green Card or Change My Status with an H-2A Visa?
The H-2A visa is not typically a pathway to immigration or a green card. However, certain H-2A visa holders may find a job while in the United States that requires an H-1B visa. If your employer agrees to undergo the H-1B visa application process, then you may be able to remain in the United States longer. H-1B visa holders can more easily apply for a green card.
There are also certain situations where an H-2A visa holder can apply for a green card – say, when you are sponsored by an employer or family member within the United States.
Why Was My H-2A Visa Denied?
The H-2A visa may be denied for any of the following reasons:
- The employer did not meet Department of Labor standards or certifications
- The employer failed to file the USCIS petition or other paperwork on-time
- The U.S. employer did not attempt to recruit American workers
- American workers were available for the position
- The employer has previously been caught violating the terms of the H-2A visa program
Can I Bring Dependents to the United States with My H-2A Visa?
Many temporary agricultural workers are curious about whether or not they can bring dependents to the United States on an H-2A visa. You can bring the following two types of dependents to the United States:
- Unmarried children under age 21
These dependents qualify for an H-4 visa, which is the same visa available to other H work visa holders. Under the H-4 visa, your dependents can remain in the United States throughout the length of your H-2A visa. Your dependents can arrive in the United States with you or after you, but they cannot arrive before you.