The H-2A program provides temporary visas to agricultural employers so that they can hire foreign labor for temporary or seasonal work. Employers must first show that there are not enough workers already legally in the United States to fill these positions before any H-2A visas will be granted.
What Are the Conditions for H-2A Visa Certification?
There are several conditions that an employer must meet before an H-2A visa will be granted:
- Recruitment - The employer must engage in recruiting U.S. workers through active methods, including radio and newspaper advertising in areas of where they would expect to locate this type of worker.
- Wages - The wages paid to foreign workers must be the same as for American workers and meet required legal minimums or applicable prevailing rate in the area for similar work.
- Housing - The employer must provide free housing to workers who are not reasonably able to return to their own homes each day. The housing must be inspected an approved according to applicable standards.
- Meals - The employer must provide either three meals a day at a reasonable price or provide free and convenient cooking facilities for workers to prepare their own meals.
The employer is also required to provide unemployment insurance and all tools and supplies required by the workers. All employees must be guaranteed employment for three-fourths of the workdays during the work period, and the employer must hire any U.S. worker who applies for the job before 50% of the work period has elapsed. The H-2A program is one of the few visa categories that do not have a ceiling or cap on the number of permitted into the United States annually. Recent changes in how H-2A visas are processed by American consular officials have streamlined the process and removed many of the previous bureaucratic obstacles. This has increased the number of Mexican H-2A applicants receiving approval.
How Can an Employer Apply?
An employer must file an application with the U.S. Department of Labor National Processing Center and local State Workforce Agency at least 45 days before the work is to begin. If the application is accepted, the Department of Labor will inform the employer of the requirements before foreign workers can be found. Once the employer has complied with these, the employer will be granted certification to hire the specified number of foreign workers.
Do I Need a Lawyer?
If you are an employer seeking to hire seasonal foreign labor, the process can be very long and complex. An experience immigration attorney can help guide you through the process and make sure all regulations are complied with. An attorney can also help you in an appeal if an application is not granted.