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The H-2A Visa is for agricultural work of a temporary or seasonal nature. This includes farming, raising livestock, and any activities in conjunction with farming operations. Activities such as handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or market (or to a carrier for transportation to marketing) in an unmanufactured state, all may fall under H-2A agricultural activities.
Caroline Ostrom, employment immigration attorney, assists employers and employees worldwide who are seeking U.S. H-2A visas. We encourage you to contact us if you need legal advice regarding the H-2A process and eligibility.
Work is seasonal for H-2A purposes if it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels far above those necessary for ongoing operations. Temporary employment lasts no more than a year, except in unusual circumstances. “Temporary” refers to the employer’s need, rather than the employee’s duties. For example, a job is not temporary for H-2A purposes if the need is continuous and ongoing, and the employer seeks a worker to fill the job for a period of time.
Nationals of designated countries may participate in the H-2A program. The U.S. Department of Homeland Security annually issues a list of designated countries. Dependents of H-2A workers may apply for H-4 visas to accompany or join the H-2A worker. No work authorization is available to H-4 dependents.
The H-2A process requires employers to obtain a temporary labor certification from the U.S. Department of Labor. The employer must demonstrate it is offering a wage at the prevailing level, or at a level which will not cause adverse effects in the local labor market. The employer must demonstrate there are insufficient U.S. workers available. The Department of Labor has numerous process, timing and content requirements for recruiting workers and making offers, which make the H-2A process unlike the recruitment and hiring activities agricultural employers normally undertake.
After a temporary labor certification is issued, the employer must submit a petition to U.S. Citizenship & Immigration Services and, upon approval of the petition, the workers must apply for visas at the U.S. consulate in their home countries prior to traveling to the U.S. The petition or visa application requires a showing that the worker meets all required qualifications for the employment.
An H-2A worker may enter the U.S. up to 5 days prior to the start date of the petition, and remain up to 30 days after the end date of the petition. Employment activity is limited to the dates of the approved petition however. An H-2A worker may be sponsored by consecutive employers – work for employer A under it’s petition for a period, and then for employer B under B’s approved petition, for example. An H-2A worker who has been in the U.S. continuously for 3 years must depart and remain outside the U.S. for at least 3 months.
H-2A workers who overstay their visas, work without authorization, or otherwise violate the terms of H-2A status, are barred from participating in the program for 5 years.
The H-2A has a multitude of specific requirements, and Ostrom Law Office can help employers avoid mistakes and delays in navigating this complex process.
Based in Minneapolis, our immigration team works with employees and employers in the Twin Cities and throughout the globe. We welcome you to contact Ostrom Law Office for assistance with your immigration matter.