Temporary (Nonimmigrant) Visas

H-2A Temporary Agricultural Worker

The H-2A visa allows aliens to enter the US to provide temporary or seasonal agricultural labor as nonimmigrants. In order to bring aliens into the US, the employer must show that there are not sufficient available, willing and qualified US workers to perform the services requested in the petition, and that there will be no adverse effect of the alien workers’ presence on the wages and working conditions of US workers who are similarly employed. The same wages and working conditions must be offered to the US workers as are offered to the incoming aliens.

Benefits that are given to Temporary Agricultural Workers

The employer must guarantee either that the temporary agricultural workers will be employed for at least three-fourths of the workdays specified in the work contract, or pay the workers for the unworked days.

The regulations require that the US employer advance the cost of transportation to the aliens to allow them to start work. During the contract period the employer must provide transportation from the worker’s living quarters to the workplace. If the worker completes the contract, the employer must provide transportation either to the worker’s home or to the next workplace.

Housing without charge must be provided to all workers who are not commuting to work. The housing that is provided must pass inspection by the DOL at least thirty days before it is necessary.

The employer must either provide three meals a day at a charge set by the DOL or provide the temporary workers with convenient cooking facilities. The employer must provide all the necessary equipment (without charge), supplies and clothing to perform the agricultural duties unless this is not the industry custom. The employer must also have workmen’s compensation insurance.

The prospective employer must file a request for a labor certification with the state employment service office with jurisdiction over the geographic area of the proposed employment. This request for labor certification can be made on behalf of one or more aliens, so long as they will be working in the same position at the same location. Then, a nonimmigrant visa petition must be filed by the employer with the INS. All the aliens included in the labor certification may apply under the same nonimmigrant visa petition.

Once the petition is approved, the aliens must take the approved visa petition to a US Consulate in order to apply for the H-2B visas to be admitted to the United States.

Extensions of stay may be granted in increments of one-year, but are difficult to obtain because of the requirement that the agricultural work be temporary in nature. Extensions may bring the total time that the alien has been in the US to a period of three years. Once an H-2A worker has been in the US for 3 years, he must remain outside the US for at least 6 months before resuming H-2A employment here. During that time, the alien may return to the US on a different nonimmigrant visa, but it may not be based on agricultural activities.

Aliens who violate the terms of their H-2A status, they are ineligible to return to the US for five years.