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The H2A visa enables American farmers to legally employ foreign agricultural workers temporarily to fill employment shortages. The program aims to help employers meet their specific labor needs. It helps them, especially during the peak seasons, while ensuring a better handling of perishable crops. However, the visa program also requires employers to offer some benefits and wages to foreign agricultural workers. The latter arriving from other countries also need to meet specific requirements. Let us learn more about the important aspects of an H2A visa below:

Steps to Apply for the H2A Visa

The H2A visa application process can be elaborated into three fundamental steps. Every individual interested in applying for this particular visa must be aware of the steps as mentioned below:

  1. Request Temporary Labor Certification. The petitioner, typically the employer, initiates the process by requesting a temporary labor certification from the U.S. Department of Labor. This application ensures compliance with labor standards and the need for hiring foreign labor.
  2. File Form I-129 with USCIS. Following the approval of the temporary labor certification, the petitioner, often the employer, proceeds to file Form I-129 with the U.S. Citizenship and Immigration Services (USCIS). This form signifies the intent to employ H2A workers and must be completed accurately.
  3. Seek Admission to the United States. The prospective H2A worker seeks admission to the United States. It happens by either getting an H2A visa, if applicable. However, entering the country with an H2A classification also works when a visa is not required. In either case, the worker undergoes a process that authorizes them to engage in temporary agricultural employment within the country.

Application Timeline for the H2A Visa

A general outline of the process is discussed below, which is common across applications:

  • Labor Certification (3-4 months or longer): The employer submits a labor certification request to the Department of Labor. The Labor Department will process the same request for 60 to 75 days. The employer must advertise the job locally and conduct recruitment efforts once accepted. The results are submitted to the DOL for review after recruitment. DOL will certify the application if no qualified workers are available for the position. The labor certification process can take from 3 to 4 months or even longer in some cases.
  • USCIS Petition (2-3 months): The employer proceeds to file Form I-129 following the approval of the labor certification. The processing time at USCIS can be different but generally takes about 2 to 3 months. It is important to account for these processing times when planning the H2A visa application process. Employers who wish to expedite this step can opt for premium processing. It helps shorten the processing time to around 15 calendar days.
  • Consular Processing: The H2A workers must schedule an appointment with the embassy in their home country after approval. The specific processing times can be different and depend on various factors. Examples include the workload and capacity of the embassy concerned. The workers can initiate this step well in advance to ensure they can arrive in the country on time.
  • Arrival in the U.S.: H2A workers should plan their arrival in the United States. It helps them to remain present before the designated start date of their employment. The time frame is important to ensure an efficient transition into the work they are intended for in the country. They must also coordinate this aspect of the process carefully to meet the required timelines.
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Common Costs Associated with the H2A Visa

The cost of an H2A visa includes various fees and expenses. However, the prices of the same depend on several factors. A few of the common costs associated with the H2A visa application process include the following:

Temporary Labor Certification

  • Labor Department Application Fee: $100
  • Additional Fee per Certified H2A Worker: $10
  • Maximum Total Certification Fee: $1,000

Form I-129 Filing

  • Employer Filing Fee (Form I-129): $460

Nonimmigrant Visa Application (Prospective Employee Living Abroad)

  • Visa Application Fee for Prospective Employee: $190

Eligibility Criteria for Workers and Employers for H2A Visa

Workers

Specific criteria must be looked at for the H2A program. They must also submit a Nonimmigrant Worker Petition with the Citizenship and Immigration Services of the United States. Here are the important eligibility requirements:

  • Impact on Workers: The petitioner or the employer must demonstrate that hiring an H2A employee will not negatively impact workers' working conditions or wages in a similar field. It ensures that the H2A workers do not harm the rights and livelihoods of the existing laborers of the country.
  • Lack of Qualified Workers: The petitioner must prove that a qualified worker from the United States cannot fulfill a particular position. So, it implies a genuine need for H2A workers because of a shortage of such laborers in the specific job category.
  • Temporary Labor Certification: A valid temporary labor certification must also be attached to the H2A petition, except in emergent circumstances. This certification affirms that the employer can proceed with hiring foreign workers legally.
  • Seasonal or Temporary Job: The job offered to the prospective employee must be seasonal or temporary. A "seasonal" job is often linked to a recurring pattern. Examples include a short growing season resulting in an increased labor demand during that period. A "temporary labor" position refers to a job not exceeding a duration of one year.

Employers

The following additional eligibility criteria apply for employers seeking temporary labor certification as a part of the H2A visa. The following are the requirements to be fulfilled:

  • Agricultural Nature: The positions being filled must be agricultural in nature, in alignment with the H2A program's focus on agricultural labor.
  • Full-Time Position: Employers must fill a full-time position with H2A workers within their organization.
  • Beneficiary's Nationality: The prospective employee must be a national of a country listed on the eligible country list. These countries remain eligible for one year after the list is published.

Key Terms for H2A Visas

  • Temporary Labor Certification: A formal document that the Department of Labor in the U.S. issues for individuals wanting to work in the U.S.
  • U.S. Citizenship and Immigration Services: The government agency that processes all immigration benefits. It also includes H2A visa petitions, applications, and related forms.
  • Labor Condition Application: A document that the employer must submit to attest to compliance with labor standards as well as hiring regulations for H2A visa workers.
  • Federal Employer Identification Number (FEIN): A unique nine-digit identifier for businesses operating in the United States. It also includes agricultural employers applying for H2A workers.
  • Perennial Pattern: An agricultural labor condition that is linked to a recurring event, such as a short harvesting season, making it eligible for H2A visa employment.

Final Thoughts on H2A Visas

The H2A visa program is important in addressing labor shortages in the agricultural industry of the United States. It offers opportunities for foreign seasonal workers to contribute to American farms during peak agricultural seasons. While the program involves a complex process with specific requirements, it serves as a vital resource for both employers and temporary agricultural laborers, facilitating the cultivation and harvest of crops and ensuring the agricultural sector's productivity and success.

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ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.


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