M-Wakili

Ask a lawyer:
What should be included in an H-2A temporary agricultural worker visa application?

Introduction

The H-2A temporary agricultural worker visa program is a U.S. immigration program that allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs. This program is essential for employers who anticipate a shortage of domestic workers to perform seasonal or temporary agricultural work. The application process for an H-2A visa is comprehensive and requires adherence to specific regulatory requirements to ensure compliance with U.S. immigration laws.

Table of Contents

  1. Overview of the H-2A Visa Program

  2. Eligibility Requirements for Employers

  3. Eligibility Requirements for Workers

  4. Application Process for Employers

    1. Job Order Submission

    2. Recruitment of U.S. Workers

    3. Filing the H-2A Petition

  5. Required Documentation

  6. Worker Protections and Employer Obligations

  7. Case Laws and Legal Precedents

  8. Conclusion

  9. TLDR

1. Overview of the H-2A Visa Program

The H-2A visa program is designed to help U.S. agricultural employers fill employment gaps by hiring foreign workers for temporary or seasonal agricultural work. The program is authorized by the Immigration and Nationality Act (INA) and is regulated by the U.S. Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (USCIS).

2. Eligibility Requirements for Employers

To participate in the H-2A program, U.S. employers must meet several eligibility criteria:

  • Temporary or Seasonal Need: The job must be temporary or seasonal in nature, such as planting, cultivating, or harvesting crops.

  • Recruitment of U.S. Workers: Employers must demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to perform the work.

  • Adherence to Labor Laws: Employers must comply with all applicable labor laws, including offering wages that meet or exceed the prevailing wage for the occupation in the area of intended employment.

3. Eligibility Requirements for Workers

Foreign workers seeking H-2A visas must meet the following criteria:

  • Job Offer: They must have a job offer from a U.S. employer for temporary agricultural work.

  • Intent to Return: They must demonstrate their intent to return to their home country after the visa expires.

  • Nationality: They must be from a country that is eligible for the H-2A program as designated by the U.S. Department of Homeland Security (DHS).

4. Application Process for Employers

The application process for the H-2A visa involves several steps:

4.1 Job Order Submission

Employers must submit a job order to the State Workforce Agency (SWA) in the state where the work will be performed. The job order must include:

  • Job Description: Detailed description of the job duties, work hours, and working conditions.

  • Wages: Information on the wages offered, which must meet or exceed the prevailing wage for the occupation.

  • Housing: Description of the housing provided to workers, which must meet safety and health standards.

4.2 Recruitment of U.S. Workers

Employers must actively recruit U.S. workers by:

  • Advertising: Placing advertisements in local newspapers and other media to reach potential U.S. workers.

  • Contacting Former Workers: Reaching out to former U.S. workers who have worked for the employer in the past.

4.3 Filing the H-2A Petition

After completing the recruitment process, employers must file an H-2A Application for Temporary Employment Certification (Form ETA-9142A) with the DOL. The application must include:

  • Recruitment Report: Documentation of the recruitment efforts and results.

  • Job Order: Copy of the job order submitted to the SWA.

  • Assurances and Obligations: Signed statements affirming the employer's compliance with program requirements.

Once the DOL certifies the application, the employer must file Form I-129, Petition for a Nonimmigrant Worker, with the USCIS.

5. Required Documentation

The H-2A visa application requires several supporting documents, including:

  • Form ETA-9142A: Application for Temporary Employment Certification.

  • Form I-129: Petition for a Nonimmigrant Worker.

  • Recruitment Report: Documentation of efforts to recruit U.S. workers.

  • Job Order: Detailed job description and terms of employment.

  • Housing Inspection Report: Certification that the housing provided meets safety and health standards.

  • Transportation Plan: Details on how workers will be transported to and from the worksite.

6. Worker Protections and Employer Obligations

The H-2A program includes several protections for workers and obligations for employers:

  • Wages: Employers must pay workers at least the prevailing wage or the Adverse Effect Wage Rate (AEWR), whichever is higher.

  • Housing: Employers must provide free housing that meets safety and health standards.

  • Transportation: Employers must provide transportation to and from the worksite and reimburse workers for transportation costs to the U.S. after completing 50% of the contract period.

  • Work Contracts: Employers must provide workers with a written work contract in a language they understand.

7. Case Laws and Legal Precedents

Several case laws and legal precedents have shaped the H-2A program:

  • Arriaga v. Florida Pacific Farms, L.L.C.: This case established that employers must reimburse H-2A workers for transportation and visa costs incurred to come to the U.S. for work.

  • Rivera v. Brickman Group Ltd.: This case reinforced the requirement for employers to pay H-2A workers the prevailing wage and provide free housing.

  • Perez-Farias v. Global Horizons, Inc.: This case highlighted the importance of protecting H-2A workers from exploitation and ensuring they receive the benefits and protections guaranteed under the program.

8. Conclusion

The H-2A temporary agricultural worker visa program is a vital tool for U.S. agricultural employers facing labor shortages. The application process is detailed and requires strict adherence to regulatory requirements to ensure compliance with U.S. immigration laws. Employers must demonstrate a genuine need for foreign workers, actively recruit U.S. workers, and provide fair wages and safe working conditions. By following these guidelines, employers can successfully navigate the H-2A visa application process and secure the necessary labor to meet their agricultural needs.

9. TLDR

The H-2A visa program allows U.S. agricultural employers to hire foreign workers for temporary or seasonal work. The application process involves submitting a job order, recruiting U.S. workers, and filing Form ETA-9142A and Form I-129. Employers must provide fair wages, free housing, and transportation for workers. Compliance with regulatory requirements and worker protections is essential.

Sources:

  • U.S. Department of Labor

  • USCIS

  • Farmers.gov

  • National Agricultural Law Center

  • Kenya Law Reports

Answered by mwakili.com