H-2A Temporary Agricultural Worker Visa Guide

The H-2 Temporary Agricultural Worker visa is of great interest to United States agricultural employers and foreign nationals looking to work for them. This nonimmigrant visa addresses the need for farm workers in the country and provides legal rights and protections for foreign nationals who fill these necessary roles. This guide will explain what’s required from agricultural employers and foreign nationals, including the steps required.

What Is the H-2A Temporary Agricultural Worker Visa?

The H-2A visa is considered a nonimmigrant visa. It is intended for foreign workers who come to the U.S. temporarily to perform agricultural work. This type of nonimmigrant visa is issued to individuals who do not plan to live permanently in the United States, and the H-2A visa fits this category because it allows foreign nationals to work in the U.S. for a specific period (usually less than a year) to fulfill temporary or seasonal agricultural jobs.

Once the job is completed, H-2A visa holders are generally required to return to their home countries, though they may reapply for future H-2A work opportunities if needed.

Who Is Eligible for the H-2A Visa?

The H-2A visa is a win-win situation. Employers facing difficulties obtaining seasonal agricultural workers benefit greatly from this program. Foreign nationals can work legally in the United States temporarily while earning wages much better than in their home countries. While it may seem as if the H-2A visa process is straightforward, it does come with its nuances. Both the United States employer and the foreign worker must meet a list of eligibility requirements. Here’s a look at the specifics.

For U.S. Employers

United States agricultural employers can apply to hire foreign workers under the H-2A program. However, they must meet these requirements:

Seasonal or temporary work: The job cannot be a long term permanent position. The H-2A visa is only valid for seasonal, temporary employment that is generally less than a year in length.
Labor shortage: Employers must prove that there aren’t enough U.S. workers willing to perform the jobs available.
Valid job offer: The job must meet the minimum wage requirements and working conditions that would be offered to United States workers.
Meals and housing: Employers are required to provide safe, free housing to H-2A employees. They must also either provide free meals or access to cooking facilities.
Transportation: Employers must provide free transportation from the worker’s home country to their place of employment and back once the assignment is over.

For Foreign Workers

Foreign nationals can apply for the H-2A visa for temporary agricultural work if they meet these requirements:

Valid job offer: Only those with a valid temporary agricultural job offer can apply for the H-2A visa.
Country eligibility: Workers must be citizens of one of the countries listed on the H-2A Eligible Countries List. The list is not limited to Central and South America and is frequently updated.
Seasonal work: You’ll need to be willing to do the job required and return to your home country once completed.
Health and background checks: Before being considered for the H-2A visa, workers must pass a health examination and criminal background check.

How Employers Can Utilize the H-2A Visa

The H-2A visa program can greatly benefit agricultural employers who are having issues obtaining workers willing to perform temporary farm work that U.S. citizens aren’t willing to do. This government program benefits both agricultural employers and foreign-born farm workers who are having difficulty obtaining fruitful employment in their home country. Here is a breakdown of how U.S. agricultural employers can obtain willful workers from other countries.

Step 1: Submit a Temporary Labor Certification (TLC) Application to the Department of Labor (DOL)

First file Form ETA-790 (H-2A Agricultural Clearance Order) with the Department of Labor. You’ll have to supply job requirements, wages, and housing information.
The Department of Labor will determine if hiring foreign workers would negatively impact the wages of United States workers.
This application must be submitted 45 days before the job begins.

Step 2: Recruitment Attempt for United States Workers

Agricultural employers must make a good-faith effort to find U.S. citizen employees before seeking foreign-born workers.
Part of the Department of Labor’s requirements is to place advertisements for employees and hire any U.S. citizens who apply and are capable of the job duties.

Step 3: File Form I-129 with USCIS

Once you’ve received your Temporary Labor Certification from the DOL, the next step in the process is to submit Form I-129 (Petition for a Nonimmigrant Worker) to the U.S. Citizenship and Immigration Services (USCIS).
Form I-129 is the petition that allows foreign workers to apply for H-2A visas.
This form must be filed at least 45 days before the start date of the job.

Step 4: Receive USCIS Approval and Hire Foreign Workers

After form I-129 approval, you can recruit foreign workers from any of the countries on the H-2A Eligible Countries List.
Interested foreign workers will use your approved petition to file for an H-2A visa in their country.

Step 5: Provide Worker Benefits

All H-2A employers are required to provide free transportation services to and from the worker’s home country, along with housing and meals.
Employers must comply with all U.S. wage and labor regulations.

How Foreign Workers Can Utilize the H-2A Visa

Foreign agricultural workers can benefit from the H-2A Temporary Agricultural Worker visa program by legally entering the United States to perform farm work on a temporary or seasonal basis. This program allows foreign workers to earn substantially higher wages than available in their home countries by accepting the jobs that U.S. citizens have shunned. Here’s a look at what the process entails.

Step 1: Receive a Job Offer

Before applying for the H-2A visa, workers must receive a valid job offer from an approved agricultural employer.
This employer will provide workers with a copy of Form I-129, which contains information about wages, housing, and free transportation to and from the worker’s home country.

Step 2: Complete and file Form DS-160

Form DS-160 (Nonimmigrant visa application) can be completed on the USCIS website.
Once completed, applicants are required to pay the processing fee and print out the confirmation page. It’ll be needed for the visa interview.

Step 3: Schedule a Visa Interview

Set up a visa interview at the U.S. embassy or consulate in your home country. Interview wait times can vary depending on caseload, so schedule as soon as possible.
The following documents must be brought to the interview: passport, Form I-129 confirmation page, and Form I-129 approval notice from the employer.

Step 4: Attend Visa Interview

The consular officer will most likely ask about your eligibility and the job’s requirements.
You’ll also be asked about how long the job will last and when you will return to your home country.

Step 5: Visa Approval

If approved, your H-2A visa will be attached to your passport. Depending on processing times, it could take a few days to a few weeks.
Once you’ve obtained your passport with the attached visa, you can travel to the United States and begin your temporary job.

Common Obstacles for Agricultural Employers and Workers When Applying for the H-2A Visa

While the H-2A program is essential for connecting capable foreign nationals to perform necessary agricultural jobs that U.S. agricultural employers cannot fill with U.S. citizens, it’s not without its obstacles. Understanding the process and its requirements can help to make it easier. Here’s a breakdown of some common issues both employers and workers can face.

Issues U.S. Employers May Face

Labor certification delays: Employers need to obtain Temporary Labor Certification (TLC) from the Department of Labor, which can sometimes be significantly delayed due to processing backlogs. Incomplete applications can also further delay the process.
Proving a shortage of available labor: Employers are faced with the burden of proving that there’s a shortage of available U.S. workers for the required positions. Failure to sufficiently advertise for workers could result in a denial of certification.
Worker benefits compliance: Employers must provide H-2A visa workers free meals, housing, and transportation that meets federal safety standards. They also need to comply with wage regulations, which could be much higher than employers initially estimated.
Complex application process: The H-2A visa process involves working with several United States agencies, including the U.S. State Department, USCIS, and the Department of Labor. Without professional legal assistance, it can be quite challenging to navigate the process.

Issues Foreign Workers May Face

Visa denial or delay: Incomplete applications may result in a denial or substantial processing delay. During peak agricultural season, obtaining a visa interview could be delayed due to backlogs.
Medical and background checks: Workers must be in good health and able to perform the physical work that’s required. Some health issues could disqualify applicants. Any previous visa overstays may result in a rejected application.
Costs and travel arrangements: While the U.S. employer is responsible for many of the costs related to the H-2A visa, many applicants may not have the funds to pay visa application fees or the cost of transportation to and from the U.S. embassy or consulate.
Exploitation and labor rights: Although U.S. agricultural employers must provide foreign workers with fair wages, safe housing, and adequate food, some fail to do so. This leaves workers who are not fully aware of their legal rights open to exploitation.

H-2A Temporary Agricultural Worker Visa Fees

There are some fees involved with the H-2A visa program. The bulk of them are relegated to the employer. However, the foreign worker will be responsible for paying embassy or consulate fees. Here’s a look at what to expect.

Temporary Labor Certification (Department of Labor Fees)

Employers will have to pay a $100 application fee when submitting their Temporary Labor Certification request.
Additionally, there is a fee of $10 per certified H-2A worker, with the total fee capped at $1,000.

Form I-129 Filing Fee (USCIS)

When filing Form I-129 (Petition for a Nonimmigrant Worker) with USCIS, the standard filing fee is $460. There are no reduced rates for smaller employers or nonprofits.

Nonimmigrant Visa Application Fee for Workers:

If the worker is applying for the H-2A visa from outside the U.S., they will need to pay a $190 nonimmigrant visa application fee (Form DS-160) at a U.S. embassy or consulate.

Agricultural Employers and the Recruitment Attempt Requirement

While some agricultural employers may not feel that active and ongoing recruitment attempts are entirely necessary, nonetheless, they are a requirement. A refusal or a lack of attempts to hire U.S. citizens will result in application denial. This is a critical requirement of the program to ensure that hiring employers who hire foreign workers does not negatively impact U.S. labor.

To ensure that employers meet this requirement, here’s a look at how employers can demonstrate a good-faith effort at hiring United States workers.

Job Posting and Advertising Requirements

Employers must advertise the job opening to U.S. workers through multiple channels to ensure they have properly reached potential local candidates. Acceptable methods include:

State Workforce Agency (SWA) Job Posting: Employers must work with the local State Workforce Agency to post the job order. The job must be posted for a minimum of 60 to 75 days before the work begins to allow ample time for U.S. workers to apply.
Newspaper Advertisements: Employers are required to run job advertisements in newspapers of general circulation in the area where the job is located. Typically, the ads must run for two consecutive Sundays, unless the job is in an area with no Sunday paper, in which case the DOL may allow ads in a daily paper.
- The ad must include the job title, location, duration of employment, wages, and a brief description of job duties.
- Employers should specify that they are offering free housing and transportation if applicable, and that the job is temporary.

Contacting Former U.S. Workers: If the employer has previously hired U.S. workers for similar roles, they must contact those former workers to inform them of the current job openings. Documenting these efforts is crucial to show a good-faith attempt.

Can Someone with an H-2A Visa Stay in the Country After Their Agricultural Job Ends?

Technically, no. The H-2A visa’s sole purpose is to allow foreign nationals to enter the United States to work in the agricultural industry on a temporary basis. However, there are couple of situations where they may be able to extend their visit, but it requires applying for a different visa. Some potential options include:

H-2B Visa: If a worker finds an appropriate non-agricultural seasonal or temporary job, they can apply to change their status to an H-2B visa.
Student Visa (F-1): Workers may apply to change their status to an F-1 student visa if they are accepted into an academic or vocational program.
Family or Employment-Based Immigration: If the worker qualifies for a family-sponsored or employment-based immigrant visa, they may apply to adjust their status to a lawful permanent resident (green card). However, this is a more complex process and usually requires an established relationship or job offer from a U.S. citizen, permanent resident, or employer.

The H-2A Temporary Agricultural Visa Explained

Agricultural employers are a big part of what keeps this country moving forward. Unfortunately, it requires a tremendous amount of human labor to do the grunt work that requires long hours working in the fields under the hot sun or within processing facilities. This type of work is demanding and difficult, and it’s often difficult to find willing and capable workers within our nation’s borders.

The H-2A Temporary Agricultural Visa helps agricultural employers find those who are willing to put in the elbow grease required to get the fruits and vegetables from the farm to your table. By allowing foreign nationals temporary status to work legally in the United States, our agricultural industry can stay afloat. The H-2A visa process can be challenging to navigate, for both employers and foreign workers. It’s recommended to work with an immigration lawyer with experience in H-2A visas to have a smoother process from application to acceptance.