H-2A foreign workers can come to the United States to perform agricultural labor or services, such as the planting, raising, cultivating, harvesting or production of any agricultural or horticultural commodity. Businesses that engage in the planting, growing, harvesting, production of agricultural or horticultural commodities qualify to participate in the H-2A program to recruit foreign workers. For farms, H-2A workers may be employed to plant, cultivate and harvest crops; for nurseries, H-2A workers can help them propagate, grow and harvest trees, plants and flowers for sale to customers; and for Christmas tree farms, H-2A workers can plant and provide care for tree seedlings during the planting season, and shear and harvest trees for sale during the Christmas season.
The need for the workers must be seasonal or temporary in nature and is normally tied to a certain time of the year by a recurring event or pattern. The seasonal need may be tied to the annual growing cycle, normally lasting for 10 months or less. For instance, the need of a farm for workers may be determined by the natural weather conditions and tied to the growing season from March to October. This need typically reoccurs in the same way each year.
The application process consists of four main steps.
1. File an application for temporary employment certification.
This application is filed with the Department of Labor and the form can be found on the dol.gov website under the section of “Employment and Training Administration”. Typically, before the application is submitted, the employer must first file a job order with the State Workforce Agency. The job order is required to be filed within the 15-day period between 60 and 75 calendar days before the job start date. After the job order is accepted for processing, then the employer may submit a temporary labor certification with the Department of Labor and initiate the recruitment process for the workers. If the employer is unable to find U.S. workers who are able, willing, qualified, and available to do the temporary work, the DOL will issue the temporary employment certification.
Upon the issuance of the temporary employment certification, the employer will be able to take the next step.
2. Submit an I-129 petition for nonimmigrant workers to the USCIS, together with the approved employment certification.
This petition can be found on the USCIS website with this URL: https://www.uscis.gov/i-129. The filing fee for the petition is $460. Evidence of the employer’s seasonal need, business activities and financial conditions must also be submitted with the petition. The USCIS will then review and adjudicate the petition. If the USCIS approves the petition, they will forward it to the U.S. consulate where the next step in the process takes place.
3. Apply for the H-2A visas at the U.S. consulate.
Applying for the H-2A visa will typically be through the Form DS-160 which will be submitted online. The DS-160 form costs $190 to file and this fee should be covered by the employer. Once the form is submitted, they then need to schedule an H-2A interview appointment at their nearest U.S. Embassy or consulate.
4. Attend the scheduled interview appointment.
At their interview, they will have to submit photographs and fingerprints. Some U.S. Embassies or consulates will have them do this at a separate appointment. During their interview, the consular officer conducting the interview will ask questions about work experience to make sure they are qualified for the job, and they will ask questions about their ties to their home country to make sure that they will not overstay their visa. The interviewer may ask questions about family, employment history, any property or businesses that they own, and financial resources. The potential employee will have to attend this interview alone. Their recruiter can’t attend the interview with them.
The whole process, from completing forms until getting your H-2A visa and the employee arriving in the U.S could take up to 3 months. If you would like to bring in H-2A workers to help you plant, grow and harvest your crops, you will need to plan ahead to complete the application process on time.
We are a Eugene Immigration Attorney office ready to help you with your H-2A petition.
If you are interested in pursuing visas for H2A workers, we can help. Contact us by calling 541-484-1811 or by emailing bwang@bwanglaw.com.
DISCLAIMER: This Article is for informational purposes only and may not be used in the place of legal advice.