Agricultural Worker (H2A Visa)

According to the U.S. General Accounting Office (GAO), there are at about 600,000 farm workers working in the United States without legal authorization, an estimate some consider to be a conservative figure. The U.S. Department of Labor (DOL) estimates that over half of U.S. farm workers are unauthorized.

The one visa category that authorizes aliens to work as seasonal farm workers in the United States is the H-2A nonimmigrant category, established by Congress in 1986. This category authorizes the temporary admission of foreign agricultural workers to perform work that is itself temporary in nature, provided U.S. workers are not available. There is no numerical limitation on the number of these visas that may be issued each year, but a limited form of labor certification is required.

The H-2A visa requires employers to provide a number of benefits to their temporary workers, including minimum rates of pay at least at the prevailing wage level, transportation to and from their temporary residence as well as to new worksites, housing meeting federal standards, meals and workers compensation insurance.

Employers must first conduct an affirmative search for available U.S. workers and the DOL must determine that admitting alien workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Employers are required to apply for H-2A certification at least 45 days in advance of the estimated date of need. DOL is required to act on H-2A certification requests at least 30 days in advance of the date of need, establishing a limited 15-day domestic recruitment period.

After DOL approves the labor certification petition, the employer files a petition with USCIS for named or unnamed alien beneficiaries. When USCIS approves the petition, it forwards the notice of the approval to the appropriate US consulate where the alien applies for their H-2A visa. The consulate issues the visa for a period up to 1 year in duration. Extensions of the H-2A visa may be granted for up to a total of 3 consecutive years.