How to Qualify for the H-2A Agricultural Visa Program

By Katherine at Legal Language
Posted on 02/23/2011
In Employment-Based, Immigration

The H-2A visa program allows foreign nationals to work seasonal agricultural jobs when there aren’t enough US workers to fill the positions — but there are still many steps to take before a worker can accept a US job.

Additionally, this year the US Department of Homeland Security authorized temporary workers from 15 new countries to be eligible for the H-2A visa program.

How Does the H-2A Visa Program Work?

The H-2A is a nonimmigrant visa available to foreign nationals who wish to perform agricultural labor or services of a temporary or seasonal nature in the United States.

Employment of a seasonal nature is defined as employment that takes place during a certain time of year, such as harvest periods, which require additional workers to complete the amount of work that needs to be done.

To qualify for an H-2A visa, a foreign worker’s employment must be temporary. This means that the employer’s need for the worker will — except in extraordinary circumstances — last no longer than one year. Most employers need workers for only a few months at a time. The expiration date on the H-2A visa will reflect how long the worker is needed for.

How to Obtain an H-2A Visa

Before a foreign worker can even apply for an H-2A visa, prospective employers of H-2A workers must first obtain certification from the US Department of Labor. This certification will show that there are not enough willing, able and available US citizens to do the work. This certification also specifies that employment of foreign nationals with H-2A visas will not have any effect on any employed US citizens or the wages and benefits offered by the company.

Once certification has been obtained, the employer may interview prospective employees and file Form I-129, Petition for a Nonimmigrant Worker, with US Citizenship and Immigration Services on behalf of a foreign worker.

Once the I-129 is approved, a worker will be notified and can finish applying for the H-2A visa at the nearest US Embassy or Consulate. If the worker is already in lawful nonimmigrant status in the United States, he or she can apply for a change of status to an H-2A classification.

While working for one employer for longer than one year is prohibited, foreign workers may extend their H-2A status by working with another employer — however, H-2A visa holders are not, under any circumstances, allowed to stay in the US for more than three years at a time.

New Countries Are Now Eligible for the H-2A Visa Program

About a month ago, the US Department of Homeland Security published a list of all the countries with citizens allowed to participate in the H-2A visa program.

The list included 53 countries, 15 of which had never been approved for the H-2A visa program before. The 15 new countries are:

  • Barbados
  • Estonia
  • Fiji
  • Hungary
  • Kiribati
  • Latvia
  • Macedonia
  • Nauru
  • Papua New Guinea
  • Samoa
  • Slovenia
  • Solomon Islands
  • Tonga
  • Tuvalu
  • Vanuatu

The remaining 38 countries are:

  • Argentina
  • Australia
  • Belize
  • Brazil
  • Bulgaria
  • Canada
  • Chile
  • Costa Rica
  • Croatia
  • Dominican Republic
  • Ecuador
  • El Salvador
  • Ethiopia
  • Guatemala
  • Honduras
  • Ireland
  • Israel
  • Jamaica
  • Japan
  • Lithuania
  • Mexico
  • Moldova
  • The Netherlands
  • Nicaragua
  • New Zealand
  • Norway
  • Peru
  • The Philippines
  • Poland
  • Romania
  • Serbia
  • Slovakia
  • South Africa
  • South Korea
  • Turkey
  • Ukraine
  • United Kingdom
  • Uruguay

If a foreign national’s home country no longer appears on this register, it is OK if he or she is currently legally employed under the H-2A status, but renewal will no longer be an option.

Additionally, USCIS in conjunction with the Department of Homeland Security may grant an H-2A visa to a foreign national from a country that is not on the generally approved list if the employer can show that the company and US economy may benefit from the services offered by the applicant. Since the H-2A is a fairly popular visa category, however, proving this when there are so many other applicants can be extremely difficult.

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