NeSmith Immigration Attorneys, LLC

Immigration and nationality Law

What is the process underlying the hiring of foreign agricultural workers?

H-2A Visa

The H-2A Visa is the most functional of visa categories. It fills a specific need for the U.S. and for foreign nationals. The visa allows foreign workers entry to the U.S. to work in agriculture. Truthfully, the visa hasn’t garnered much support in the community. Growers don’t like the limits of the visa and advocates don’t believe the laws give enough support to workers.

The H-2A visa is not self-petitioned. Employers must apply on behalf of their employees. The employer can be self-employed, a partnership, corporation or agricultural association. An agent may also apply on behalf of the employer. Workers’ spouses and unmarried children under the age of 21 are allowed to join them in the US under the H-4 status. Dependents are not permitted to work, unless they personally qualify for a work visa.

STEPS

The first step is for the employer to apply for a Temporary Labor Certification from the US Department of Labor (DOL). The employer must meet all requirements of the DOL, and must prove that there are no U.S. workers available for the proposed position(s).

After approval of the application, the employer must attempt to recruit eligible US individuals for the proposed positions. After the recruitment process is complete, the DOL will subtract the number of accepted US workers from the requested amount of H-2A workers. If no U.S. workers were able to be recruited, the employer will be eligible to apply for his/her requested amount of visas.

The employer will then petition for the agreed amount of H-2A Visas with USCIS . After approval of this petition, foreign workers may apply to the consulate in their home nations.

DOCUMENTS

The documents required for the petition process are:

Form I-129/I-129H (Petition for non-immigrant worker) along with a fraud prevention fee of $150
A copy of the approved Temporary Labor Certificate.
A statement detailing the number of workers required.
An application including the workers’ names and qualifications.
The documents required for the H-2A Visa are:

An approved temporary labor certification.
Application for Alien Employment Certification
Agricultural and Food Processing Clearance Order (Form ETA 790). Documents that support the required forms.

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