Temporary Agricultural Workers in USA - H-2A Visa

Agricultural Workers in the USA

Opportunities are largely available for you to work in the United States, especially when you are seeking out agricultural work. 

The H-2A Visa is a nonimmigrant visa program that allows low-skill, temporary, or seasonal workers to seek employment in the U.S. The H2A visa allows U.S. employers and U.S. agents that meet specific requirements to employ foreign nationals and bring them to the U.S. to take up temporary agricultural jobs. 

What is an H-2A Visa

The H-2A program allows US employers or US agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs. A US employer, a US agent, or an association of US agricultural producers named as a joint employer must file Form I-129, Petition for a Nonimmigrant Worker, on a prospective worker’s behalf.

Who May Qualify for H-2A Classification?

To qualify for an H-2A nonimmigrant classification, the petitioner must offer a job that is of a temporary nature, demonstrate that there are not enough US workers who are able to do the work, show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed US workers, and generally submit a single valid temporary labour certification from the US Department of Labour with the H-2A petition.

H-2A petitions may only be approved for nationals of countries that the secretary of homeland security has designated, with the concurrence of the Office of the Secretary of State, as eligible to participate in the H-2A program. 

What Are the Requirements for H-2A Employers?

Most of the H2A visa requirements related to your U.S. employer (who will be your H2A visa petitioner) and the specific job they are offering.

Employers must be know that the job being offered has to be seasonal or temporary in nature, the petitioner will have to demonstrate there aren't enough US workers able, willing, or qualified to do the work, the petitioner must show that employing you as an H2-A worker will not affect the working conditions or wages of similarly employed US workers, and the US Department of Labour will have to issue a single valid temporary labour certificate, which will form part of the H2-A petition. 

H-2A Program Process

Before you can apply for an H2A visa, you have to have a job offer from an employer in the U.S. Make sure you review your work contract carefully and check that the offer and the employer’s petition is valid. 

Your employer must submit a temporary labor certification application to the U.S. Department of Labor. They will then receive a temporary labor certification for H2A workers from the department of labor. After this, your employer can request H2A classification from the USCIS.

Your employer must then submit the Form I-129 to the USCIS after receiving the temporary labor certification for H2A employment from the Department of Labor. 

How to Apply for the H-2A Visa

 Once the USCIS has approved the Form I-129, you can apply for the H2A visa from within your home country. You must apply for the H2A visa with the U.S. Department of State at a U.S. Embassy or Consulate in your home country. Complete the Form DS-160 and submit it online. Then schedule your H2A interview appointment at your nearest U.S. Embassy or Consulate.

In some cases, you will have to also attend a biometrics appointment. 

At the H2A interview, you will need to show you are qualified to do the job, you have sufficient ties to your home country (so you can show your intention to return) and that you will not overstay your visa in the U.S. The consular officer conducting your interview can ask you questions about your family that remains in your home country, your employment history, any property or businesses that you own, and your financial resources.

You will have to attend this interview alone. Your lawyer or recruiter can’t attend the interview with you. 

H-2A Eligible Countries List

The countries eligible for the H-2A Visa include:

H-2A Visa Period of Stay

The maximum period of stay in H-2A classification is 3 years. A person who has held H-2A nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A nonimmigrant.

Family of H-2A Workers

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.

Costs of the H-2A Visa Program

The filing fee for the Form I-129 is $460. But, the filing fee and cost of the H2A visa application are generally born by your U.S. employer. 

The DS-160 has a $190 application fee. You might have to pay this fee out of your own pocket, but your employer should reimburse you for this. 

How Long Is the H-2A Visa Processing Time?

The H-2A visa processing time can depend on several factors, including the processing times of the various government agencies that form part of the process. Generally, however, the whole process takes about 90 days from start to finish to complete.

Guaranteed Payment (3/4 Guarantee)

Under the H-2A Visa Program, employers must guarantee workers employment hours equal to at least 75% of the workdays in the contract period. The employer will pay workers who weren’t offered sufficient hours.

For example, if a contract is for a 10-week period, where a normal workweek is 6 days a week, 8 hours per day, the worker would need to be guaranteed employment for at least 360 hours (10 weeks x 48 hours per week = 480 hours x 75% = 360 hours).

Taxing Workers

H-2A workers aren't required to pay Social Security and Medicare taxes on their wages. In addition, the employer is not required to pay these taxes on the worker either.

Workers may owe U.S. federal income tax when they file income tax returns for the year. If both the worker and the employer agree to withhold federal income tax, employers can withhold. In order for the employer to withhold taxes from the worker's compensation, the worker must complete and return Form W-4, Employee's Withholding Allowance Certificate, to the employer.

Note that some states allow employers to withhold the employee’s portion of workers compensation.

Laws and Obligations

Employers cannot hold or confiscate workers' passports or other immigration documents, and there can be no strike or lockout during a labour dispute at the worksite.

Employers cannot discriminate against, or discharge without just cause, any person who has filed a complaint, consulted with an attorney or an employee of a legal assistance program, or testified on behalf of themselves in any manner.