The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter the
What are employers required to do to obtain workers on H-2A visas?
Generally, employers must satisfy two criteria to hire nonimmigrant workers when filing an application with the USCIS:
Who may file an application for an H-2A visa?
· An agricultural company or employer who expect a shortage of
· An authorized agent filing on behalf of an agricultural employer
The employer may be an individual proprietorship, a partnership or a corporation. A collective of agricultural producers may file as either a sole employer, a joint employer with its members, or act as an agent on behalf of its members.
What steps must employers follow to do to obtain workers via the H-2A process?
First, two copies of the ETA-750 are filed, of which one should be sent to the appropriate Department of Labor (“
Second, recruitment efforts follow, which are directed by the SWA for H-2A positions in one of three ways: the SWA refers candidates to the employer (with the employer using the state’s electronic data bank), the employer conducts independent recruitment, or the recruitment is conducted after the SWA certifies the applications. Generally, referrals come from the state agencies. Employers are required to hire US workers who apply for work until half of the contract period is over.
Third, following the recruitment period, a decision is made regarding certification. The SWA subtracts the number of
Once certification is granted, the application is then filed with the
What might be some reasons for which the
One pitfall preventing certification is if the
How long are the H-2A visas valid?
Generally, the H-2A visas are valid for a one year maximum. Extensions of up to one year, however, are possible but with a maximum of three years. After the alien has spent three years in the
How do employers calculate workers’ earnings?
Usually farm workers receive either an hourly wage or are paid by the piece. Under the H-2A program, however, workers have to be offered a wage equal to that of US workers. In the past, this has been interpreted to mean the higher payout of the following:
· The prevailing industrial wage in the relevant labor market
· The state or federal minimum wage
· The “adverse effect wage rate” (“AEWR”)
For workers earning money by the piece, an employer must pay any difference between worker earnings and the AEWR. Additionally, on or before each day the H-2A worker is paid, 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.
What benefits are employers required to provide the workers?
· Transportation to and from the workers’ temporary home to the workplace
· When the contract period is up, transportation home or to their next workplace
· Housing to all workers who do not commute, which must be inspected by the Department of Labor as well as meet minimum federal standards for temporary labor camps
· Either three meals a day or facilities in which the workers can prepare food
· Any tools and supplies necessary to perform the work
· Workers compensation insurance where required by state law; if state law does not require it, the employer must provide equivalent insurance
Gregory Siskind, Esq. is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.