USA H-2A Visas-Temporary Agricultural Workers

Work Authorization for Non-U.S. Citizens: Temporary Agricultural Workers (H-2A Visas)

Who is Covered
The Immigration and Nationality Act (INA) is administered by the Office of Foreign Labor Certification (OFLC) of the Employment Training Administration (ETA). The INA covers agricultural employers seeking to hire temporary agricultural workers under H-2A visas.

The work to be performed must be “of a temporary (or seasonal) nature,” meaning employment that is performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign workers(s) is truly temporary.

Important Notice. All program users and other interested parties should frequently consult the Office of Foreign Labor Certification Web site, where the Department of Labor will post updates concerning the H-2A temporary agricultural labor certification program.

Basic Provisions/Requirements
The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer's petition for such workers, the employer must file an application with the Department stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs. The Department's Wage and Hour Division has responsibility for enforcing provisions of worker contracts.

Any employer who has been certified for a specific number of H-2A jobs must have initially attempted to find U.S. workers to fill these slots. Even after H-2A workers are recruited employers must continue to engage in "positive recruitment" of U.S. workers.

Employee Rights
An employer who files an application for temporary foreign labor certification pursuant to H-2A regulations must meet many specific conditions, including those concerning recruitment, wages, housing, meals, transportation, workers’ compensation insurance, tools and supplies, certification fees, labor disputes, and other conditions.

Workers who believe that their rights were violated under the H-2A regulations may file their complaints through the Job Service Complaint System, as described in 20 CFR part 658, Subpart E.

H-2A workers and the U.S. workers hired under the job order may file complaints about non-compliance with H-2A labor standards with a local Wage and Hour Division office. ETA or any State Workforce Agency will forward any complaint received about contractual H-2A labor standards between the employer and the employee to a local Wage and Hour Division office for appropriate action.

Recordkeeping, Reporting, Notices and Posters

Notices and Posters
The Department’s Employment and Training Administration and Wage and Hour Division published a final rule implementing changes to the H-2A program effective March 15, 2010.  One of the requirements in the rule is for employers who employ H-2A workers to display a new H-2A poster where employees can readily see it. The poster is also available in Spanish.   It will be made available in other languages in the coming months.

Recordkeeping

Employers certified under H-2A must keep records of the hours each worker actually works. In addition the employer must retain a record of time "offered" to the worker but which the worker "refused" to work. Each worker must be provided a wage statement showing hours of work, hours refused, pay for each type of crop, the basis of pay (i.e., whether the worker is being paid by the hour, per piece, "task" pay, etc.). The wage statement must indicate total earnings for the pay period and all deductions from wages (along with an explanation as to why deductions were made).

Employers must maintain records concerning any worker who was terminated and the reason for such termination. The employer, in order to negate a continuing liability for wages and benefits to workers, must notify the NPC of any abandonment or abscondment.  The employer should also indicate if replacement(s) will be sought for such worker(s).

Reporting

The worker must be provided with a complete statement of hours worked, offered, and refused, pay for each type of crop, the basis of pay (i.e., whether the worker is being paid by the hour, by the piece, "task" pay, etc.) on each payday.  The wage statement must indicate total earnings for the pay period and all deductions from wages (along with a statement as to why deductions were made). The employer must provide a copy of a work contract or the job order to each worker on or before the first day of employment.

Penalties/Sanctions
The Wage and Hour Division has a primary role in investigating and enforcing the terms and conditions of employment. WHD is responsible for enforcing the contractual obligations employers have toward employees, and may assess civil money penalties and recover unpaid wages. Administrative proceedings and/or injunctive actions through federal courts may be instituted to compel compliance with an employer's contractual obligations to employees.

ETA enforces other aspects of the laws and regulations. ETA is be responsible for administering sanctions relating to substantial violations of the regulations and less than substantial violations of the regulations.

Relation to State, Local, and Other Federal Laws
Foreign workers employed under the H-2A program are not covered under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) however, various other laws, such as workers’ compensation, tax (unemployment insurance, local, state, and federal), the Fair Labor Standards Act, and the Family and Medical Leave Act may apply to the employment of these workers.


Er Ashima Patel
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H2a visa requirements

H-2A Eligible Countries List

Except as noted below, H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A program.

The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries annually in a Federal Register notice. Designation of eligible countries is valid for one year from publication.

Effective Jan. 18, 2012, nationals from the following countries are eligible to participate in the H-2A program: 

Argentina Ecuador Jamaica New Zealand Solomon Islands
Australia El Salvador Japan Norway South Africa
Barbados Estonia Kiribati Papua New Guinea South Korea
Belize  Ethiopia Latvia Peru Spain
Brazil Fiji Lithuania Philippines Switzerland
Bulgaria Guatemala Macedonia Poland Tonga
Canada Haiti Mexico Romania Turkey
Chile Honduras Moldova Samoa Tuvalu
Costa Rica Hungary Montenegro Serbia Ukraine
Croatia Iceland Nauru Slovakia United Kingdom
 Dominican Republic Ireland The Netherlands Slovenia Uruguay
    Israel Nicaragua     Vanuatu
A national from a country not on the list may only be the beneficiary of an approved H-2A petition if the Secretary of Homeland Security determines that it is in the U.S. interest for him or her to be the beneficiary of such a petition.
Note: If you request H-2A workers from both eligible and non-eligible countries, USCIS suggests that you file two separate petitions.  Filing one petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help decrease delays.


Recordkeeping
Employers certified under H-2A must keep records of the hours each worker actually works. In addition the employer must retain a record of time "offered" to the worker but which the worker "refused" to work. Each worker must be provided a wage statement showing hours of work, hours refused, pay for each type of crop, the basis of pay (i.e., whether the worker is being paid by the hour, per piece, "task" pay, etc.). The wage statement must indicate total earnings for the pay period and all deductions from wages (along with an explanation as to why deductions were made).
Employers must maintain records concerning any worker who was terminated and the reason for such termination. The employer, in order to negate a continuing liability for wages and benefits to workers, must notify the NPC of any abandonment or abscondment.  The employer should also indicate if replacement(s) will be sought for such worker(s).


Period of Stay
Generally, USCIS may grant H-2A classification for up to the period of time authorized on the temporary labor certification.  H-2A classification may be extended for qualifying employment in increments of up to 1 year each.  A new, valid temporary labor certification covering the requested time must accompany each extension request.  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.   Additionally, previous time spent in other H or L classifications counts toward total H-2A time.
Exception: Certain periods of time spent outside of the United States may “interrupt” an H-2A worker’s authorized stay and not count toward the 3-year limit.  See Calculating Interrupted Stay for H-2 Classifications for additional information.

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.

Employment-Related Notifications to USCIS
Petitioners of H-2A workers must notify USCIS within 2 workdays if any of the following occur:

• No show: The H-2A worker fails to report to work within 5 work days of the latter of:
• The employment start date on the H-2A petition, or
• The start date established by the employer; 
• Abscondment: The H-2A worker leaves without notice and fails to report for work for 5 consecutive workdays without the consent of the employer; 
• Termination: The H-2A worker is terminated prior to the completion of  the H-2A labor or services for which he or she was hired; or

Early Completion: The H-2A worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2A petition.
petitioners must include the following information on the employment-related notification:
1.The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion”);

2.The reason for untimely notification and evidence for good cause, if applicable;
3.The USCIS receipt number of the approved H-2A petition;
4.The petitioner’s information, including:

• Name 
• Address 
• Phone number  
• Employer identification number (EIN)

5.The employer’s information (if different from that of the petitioner):

• Name
• Address
• Phone number

6.The H-2A worker’s information:

• Full Name
• Date of birth
• Place of birth
• Last known physical address and phone number

Additionally, to assist USCIS with identification of the H-2A worker, submit the following for each H-2A worker, if available:

• Social Security Number
• Visa Number

Failure to Notify USCIS: A petitioner who fails to comply with these employment notification requirements, or fails to demonstrate good cause for untimely notification, may be required to pay $10 in liquidated damages for each instance of noncompliance.


Er Ashima Patel
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USA H-2A Visa

H-2A Temporary Agricultural Workers

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


Who is Covered
The Immigration and Nationality Act (INA) is administered by the Office of Foreign Labor Certification (OFLC) of the Employment Training Administration (ETA). The INA covers agricultural employers seeking to hire temporary agricultural workers under H-2A visas.

The work to be performed must be “of a temporary (or seasonal) nature,” meaning employment that is performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign workers(s) is truly temporary.

Who May Qualify for H-2A Classification

To qualify for H-2A nonimmigrant classification, the petitioner must:

• Offer a job that is of a temporary or seasonal nature.
• Demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work.
• Show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
• Generally, submit with the H-2A petition, a single valid temporary labor certification from the U.S. Department of Labor.  (A limited exception to this requirement exists in certain “emergent circumstances.”  

H-2A Program Process
Step 1: Petitioner submits temporary labor certification application to the U.S. Department of Labor (DOL).  Prior to requesting H-2A classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2A workers with DOL. For further information regarding the temporary labor certification requirements and process, see the Foreign Labor Certification, Department of Labor page.

Step 2:  Petitioner submits Form I-129 to USCIS.  After receiving a temporary labor certification for H-2A employment from DOL, the employer should file Form I-129 with USCIS. With limited exceptions, the original temporary labor certification must be submitted as initial evidence with Form I-129.  (See the instructions to Form I-129 for additional filing requirements.)

Step 3: Prospective workers outside the United States apply for visa and/or admission.  After USCIS approves Form I-129, prospective H-2A workers who are outside the United States must:
 Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad, then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
Directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry, if a worker does not require a visa.


Er Ashima Patel
www.aisikitesi.com

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H-2A Visa Seasonal Agricultural Workers