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H-2A Visas

by Gregory Siskind, Esq.

The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter the U.S. to carry out temporary or seasonal agricultural labor or services. Given estimates that more than half of America’s agricultural workers are undocumented immigrants, the use of the H-2A visa is becoming more and more important.

 

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:

 

  1. The employer must show that able, willing, and qualified US workers are not available at the time and place needed
  2. The employer must show that an adverse effect on wages or working conditions of similarly employed US workers will not result from the employment of foreign workers

 

Who may file an application for an H-2A visa?

 

·         An agricultural company or employer who expect a shortage of U.S. workers needed to perform temporary or seasonal agricultural labor or services

·         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 (“DOL”) region, and the other to the respective state workforce agency (“SWA”) for the state in which the work is sought.  This application has to be submitted at least 45 days before the H-2A temporary workers are needed and it also has to be approved by the DOL before the starting work date.  The application fees, which must be paid by the employer, include $100 base fee plus $10 for each position certified, up to a maximum of $1000.

 

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 US workers successfully referred from the total number of workers requested by employers to calculate and certify the remaining job openings. 

 

Once certification is granted, the application is then filed with the DOL national processing center, which it may be filed for multiple unnamed workers.  As they become available, however, the DOL must be provided with names.  Finally, following DOL approval, the workers can then apply for visas at the appropriate consulate office. 

 

What might be some reasons for which the DOL might not issue certification?

 

One pitfall preventing certification is if the DOL determines that US workers have filled all the job openings, or for example, if the DOL determines that H-2A candidates have been offered better working conditions than their US counterparts.  Another reason preventing certification could be if a strike or a lockout results, or if the employer is in significant violation of the H-2A program with the previous two years.  Yet another block could be if the employer fails to show that H-2A workers will be covered by workers compensation, or if the employer fails to comply with the recruitment efforts.

 

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 US under the H-2A status, then the alien must leave for six months before continuing H-2A employment.  Subsequent to this time, however, the alien can reenter the US in any status not based on the performance of agricultural work.    

 

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


About The Author

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 gsiskind@visalaw.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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