Agricultural Worker (H2A Visa)

The one visa category that authorizes aliens to work as seasonal farm workers in the United States is the H-2A nonimmigrant category. This category authorizes the temporary admission of foreign agricultural workers to perform work that is itself temporary in nature, provided U.S. workers are not available. There is no numerical limitation on the number of these visas that may be issued each year, but a limited form of labor certification is required.

The H-2A visa requires employers to provide a number of benefits to their temporary workers, including minimum rates of pay at least at the prevailing wage level, transportation to and from their temporary residence as well as to new worksites, housing meeting federal standards, meals and workers compensation insurance.

Employers must first conduct an affirmative search for available U.S. workers and the DOL must determine that admitting alien workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Employers are required to apply for H-2A certification at least 45 days in advance of the estimated date of need. DOL is required to act on H-2A certification requests at least 30 days in advance of the date of need, establishing a limited 15-day domestic recruitment period.

After DOL approves the labor certification petition, the employer files a petition with USCIS for named or unnamed alien beneficiaries. When USCIS approves the petition, it forwards the notice of the approval to the appropriate US consulate where the alien applies for their H-2A visa. The consulate issues the visa for a period up to 1 year in duration. Extensions of the H-2A visa may be granted for up to a total of 3 consecutive years.

Filing the I-129 Petition:

USCIS Form I-129 consists of a basic petition and different supplements that apply to the various visa categories. In order to petition for a temporary worker, the prospective employer or agent must file Form I-129, Petition for Nonimmigrant Worker, and the appropriate supplement with the U.S. Citizenship and Immigration Services (USCIS) accompanied by the required payment, and initial evidence or documentation.

Once the petition is approved, the employer or agent is sent a Notice of Approval, Form I-797. Approval of a petition does not guarantee visa issuance to an applicant. Applicants must also establish that they are admissible to the U.S. under provisions of the Immigration and Nationality Act (INA).

Applying for the Visa:

If the prospective worker (beneficiary) is outside of the country, he must apply for a visa. After the USCIS has approved the I-129 and sent notice to the consulate in the beneficiary’s country, the beneficiary must file a visa application with the consulate. Some aliens may be visa exempt. In those cases, the I-129 approval notice is sent to the port of entry (POE) where the beneficiary intends to apply for admission. For specific procedures on Visa Application Procedures, Required Documentation and Visa Ineligibility Waiver, please visit Visa Services at the Department of State.

If the beneficiary is already in the U.S. and is changing from one nonimmigrant status to another, a visa is not required. However, a visa may be required if the beneficiary subsequently leaves the U.S. and wishes to re-enter.

Entry into the U.S.

Applicants should be aware that a visa does not guarantee entry into the United States. The U.S. Customs and Border Protection (CBP) has authority to deny admission at the port of entry to any applicant who is inadmissible under INA, even if the applicant has a visa. Also, the CBP, not the consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States. At the port of entry, CBP officials issue Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.

When to file:

Petitions should be filed as soon as possible, but no more than 6 months before the proposed employment will begin or the extension of stay is required. If the petition is not submitted at least 45 days before the employment will begin, petition processing and subsequent visa issuance may not be completed before the alien's services are required or previous employment authorization ends.