The H-2A program was instituted to meet this need for seasonal and temporary labor, without adding permanent residents to the population.  It permits U.S. employers to bring temporary foreign workers into the United States to perform agricultural labor or services of a temporary or seasonal kind.

The H-2A program is managed by three federal agencies. The Department of Labor (DOL) issues the H-2 labor certifications and oversees compliance with labor laws; U.S. Citizenship and Immigration Services (USCIS) adjudicates the H-2 petitions, and the Department of State (DOS) issues the visas to the workers at consulates overseas.

The initial period of stay will be designated on the temporary labor authorisation.  H-2A nonimmigrant workers coming to the United States to perform seasonal jobs must leave following a maximum period of stay.  Some may apply to extend their stay or change/adjust status.  Extensions may be granted for up to one(1) year.   The maximum period of stay is 3 years.

Under the current DOL labor certification process, employers must certify that U.S. workers are not available to perform this work before they may hire a nonimmigrant worker;  must have initially attempted to find U.S. workers to fill these jobs; and the job must be temporary.

There are no annual limitations on the number of temporary foreign H-2A workers that may be admitted into the United States.

H-2A workers and domestic workers in corresponding employment must be paid special rates of pay that vary by locality, must be provided housing and transportation from that housing to the job site if their employment requires them to be away from their residence overnight, and must be guaranteed an offer of employment for a total number of hours equal to at least 75% of the work period specified in the contract.

Not every country is eligible.  Visit this USCIS website to see which countries are eligible.

No fee can be solicited from an H-2A worker as a condition of employment.

An H-2A worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification.  Family members are not eligible for employment in the United States while in H-4 status.

Process:

1. The employer must file an application with the Department’s Employment and Training Administration (ETA).  An employer may file a Form I-129, Petition for Nonimmigrant Worker.  Start the Certification process here: DOL - iCERT Visa Portal System.

2. Petitioner submits Form I-129 to USCIS.  After receiving a temporary labor certification for H-2A employment from DOL, the petitioner must file Form I-129 with USCIS.

3. Prospective workers outside the United States apply for visa and/or admission.  After USCIS approves Form I-129, prospective H-2A workers who are outside the United States must:

-Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or

-Directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry, if a worker does not require a visa in cases where an H-2A visa is not required.

Form I-129 is filed at the California Service Center (CSC), the Vermont Service Center (VSC), or the Nebraska Service Center (NSC), depending on the requested nonimmigrant classification, requested action and location of the temporary employment or training.   When the temporary employment or training will be in different locations, the state where your company or organization’s primary office is located will determine where you should send your Form I-129 package, regardless of where the various worksites are located in the United States.  Learn more:

When the beneficiary with an approved Form I-129 is admitted to the United States, U.S. Customs and Border Protection grants the beneficiary a period of stay documented on Form I-94 or as noted in the passport or travel document.

Petitioners of H-2A workers must notify USCIS within 2 workdays if any of the following occur:

-No show: The H-2A worker fails to report to work within 5 work days of the latter of:

-The employment start date on the H-2A petition, or

-The start date established by the employer;

-Abscondment: The H-2A worker leaves without notice and fails to report for work for 5 consecutive workdays without the consent of the employer;

-Termination: The H-2A worker is terminated before completing of  the H-2A labor or services for which he or she was hired; or

-Early Completion: The H-2A worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2A petition.

Fees:

The filing fees is $460.00 per application.

Penalties:

There are penalties for violating the DOL guidelines that range from $1,658 to $110,524.  Learn more [Welcome to the iCERT Visa Portal System]