The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers (usually Farm Laborers or Farm Workers) to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.
Before the USCIS can approve an employer’s petition for such workers, the employer must file an application with the U.S. Department of Labor (“DOL”) stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Our qualified immigration attorney processes H-2A Visa applications for both steps of the H-2A processing including the Labor Certification with U.S. Department of Labor and the Nonimmigrant petition.
The regulations governing the H-2A visas provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs.
“Temporary or seasonal nature” means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign workers(s) is truly temporary.
Many of the benefits that must be included in a job offer and other conditions that must be satisfied will be dependent upon what prevailing practices exist in the same occupation, crop and area.
Employers are advised that it is desirable to make an independent determination of factors such as prevailing wages and employer practices before filing an application. Please be sure to contact a qualified immigration attorney who can assist you with the processing of filing an H-2A visa.
In addition, the farm worker must be a citizen from one of the below countries in order to qualify for an H-2A visa:
Papua New Guinea
Employers seeking to obtain an H-2A visa must meet the following specific conditions:
The employer must agree to engage in independent positive recruitment of U.S. workers. This means an active effort, including newspaper advertising in areas of expected labor supply This is usually up to 3 states.
Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers in the same or similar crops and area to secure U.S. workers.
The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable or the applicable prevailing hourly wage rate, whichever is higher. The AEWR is established every year by the Department of Labor for every state except Alaska.
If a worker will be paid on a piece rate basis, the worker must be paid the prevailing piece as rate for their specified crop activity. If the piece rate does not result in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the hourly rate, then the worker’s pay must be supplemented to the equivalent hourly level. Please consult with a qualified immigration lawyer who can provide further information regarding prevailing wages required for H-2A sponsorship.
The employer must provide free housing to all workers who are not reasonably able to return to their residences the same day. Such housing must be inspected and approved according to appropriate standards. Housing provided by the employer shall meet the full set of DOL Occupational Safety and Health Administration (OSHA). Rental housing which meets local or state health and safety standards also may be provided.
The employer must provide either three meals a day to each worker or furnish free and convenient cooking and kitchen facilities for workers to prepare their own meals. If meals are provided, then the employer may charge each worker a certain amount per day for the three meals.
The amount of transportation payment shall be no less (and shall not be required to be more) than the most economical and reasonable similar common carrier transportation charges for the distances involved. The employer is responsible for the following different types of transportation of workers:
The employer must provide workers’ compensation insurance where it is required by state law. Where state law does not require it, the employer must provide equivalent insurance for all workers. Proof of insurance coverage must be provided to the National Processing Center before certification is granted.
The employer must furnish, at no cost to the worker, all tools and supplies necessary to carry out the work, unless it is common practice in the area and occupation for the worker to provide certain items.
When and Where to File
Your agricultural job order filled on form ETA750 must be filed with the SWA (State Workforce Agency) no more than 75 calendar days and no less than 60 calendar days before the first day the workers are needed. If the work to be performed is located in more than one State within the same geographic area, the job order can be submitted to any one of the SWA’s covering the area of employment.
After SWA will reviews your agricultural job order they will either clear you for the next recruitment step or they will notify you of any deficiencies in your ETA 750. Please note that you must respond to each deficiency on this notice. Please contact our qualified immigration lawyer who can provide you with further information regarding necessary documentation for H-2A agricultural workers.
If the SWA accepts the work order into the clearance systems then you can begin recruitment of U.S. workers for the farming job opportunity. Employers are expected to contact any U.S. citizens previously working for them as well as accept referrals of workers forwarded by the SWA.
Our qualified H-2A immigration attorney has processed multiple agricultural visas for seasonal harvests of many different kinds of farming industries. Not only has our attorney worked directly with growers, but we also have extensive experience working with Farm Labor Contractors. Please contact our office for a free H-2A visa consultation.