The H-2A agricultural visa is a temporary visa reserved for individuals who are coming to perform seasonal agricultural labor or services. The employer must show that there are no able, willing, and qualified U.S. Citizen or Lawful Permanent Resident workers available at the time and place needed, and the employer must show that the hiring of the foreign national will not adversely deflate the wages or working conditions of similarly employed U.S. workers.
H-2A visa applications may be filed by an agricultural company, association, farm labor contractor or employer who expects a shortage of U.S. workers needed to perform temporary or seasonal agricultural labor or services or by an authorized agent filing on behalf of an agricultural employer.
At least 45 days before the date of need, the employer must submit an application to the Department of Labor (DOL) for the state in which employment is sought. Once the DOL receives the application, the employer begins a recruitment process. Employers must interview and make an offer of employment to any qualified U.S. Citizen or Lawful Permanent Resident worker and may only obtain H-2A visas for those jobs that remain unfilled after the recruitment process. In addition, the employer must hire any U.S. Citizen or Lawful Permanent Resident worker who applies for the job during the first half of the contract period.
Following the recruitment period, the employer must attest to the DOL that it has engaged in a bona fide test of the labor market and that the employer has subtracted the number of U.S. workers successfully referred from the total number of workers requested. The employer must retain all documentation related to the recruitment period in case of a DOL audit.
Following approval by the DOL, the employer files a petition with USCIS for the H-2A status, and, on approval, candidates seek the H-2A visa at a consulate abroad.
H-2A visas are valid for a one year maximum. Extensions of up to one year, however, are possible in some circumstances.
H-2A workers must be offered a wage that is equal to that of U.S. workers. This is calculated by using the highest of any of the following: (1) The prevailing industrial wage in the relevant labor market; (2) The state or federal minimum wage; or (3) the “adverse effect wage rate” (“AEWR”).
For workers earning money by the piece, an employer must pay any difference between worker earnings and the adverse effect wage rate. Additionally the employer must provide the worker with an earnings statement listing total earnings, hours of work offered versus actually worked, and whether the worker is paid hourly or by the piece.
In addition to paying the wage described above, H-2A workers must be provided certain benefits at the employer’s expense. These include:
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