Some employers have the option to bring in foreign workers temporarily through a program called the H-2A agricultural guest worker visa program. This program is designed to assist agricultural employers in finding workers to help with their harvests without relying solely on local workers or immigrants who are in the country illegally.
In the past, the H-2A visa program was not widely used due to its complex processing and the availability of illegal workers for farmers. However, recent changes to the program have made it more practical and accessible for those who qualify.
To make the most of the H-2A visa program, it is important to understand how it works and who is eligible to use it. This article will provide an overview of the basics of H-2A visas and explain why they are crucial for agricultural employers.
What is the H-2A Visa Program?
The H-2A visa program gives agricultural employers a means by which to use foreign workers on a temporary or seasonal basis legally. It is designed to cover specific tasks like harvest or planting.
This program is limited to agricultural use. For example, a retail store couldn’t use it to bring in foreign workers for the holiday season.
Guidelines that qualify an employer to use H-2A visas include the following:
- The business must be in the U.S.
- The employer must have a valid Federal Employer Identification Number (FEIN).
- The visa is only for agricultural workers or support staff.
- The visa is only temporary, usually about ten months. It must also connect to a critical time of year like harvest, planting, or cultivating.
The employer must try to hire domestic workers first, as well. The DOL will determine that there are enough domestic workers available before issuing visas. They must decide that employing foreign workers will not affect the wages or conditions of domestic ones.
There are also guidelines for the types of workers that can get H-2A visas. They must be:
- Farm, crop, nursery, or greenhouse workers.
- Agricultural equipment operators.
- Farm, ranch, or aquaculture animal workers.
In other words, they must support the agricultural side of the business. They can not be back office or clerical, for instance.
The number of H-2A visa applications is rising because there is a lack of domestic workers available. In 2021, the Department of Labor (DOL) issued 250,000 visas. In 2022, there were 370,000 visas.
H-2A Visa Qualification Process
The H-2A visa process starts with filing a job order stating there is a H-2A opportunity. This is done through the DOL’s online FLAG system. When the department receives the order, it will send it to the State Workforce Agency (SWA) in the employment region. SWA will review the order and determine if there is a need.
Application for Temporary Employment Certification
The next step is to fill out a labor certification electronically through FLAG. The Chicago National Processing Agency (NPC) will review the document to ensure it complies with the requirements. The agency has seven days to notify the employer of issues with the document. If there are no issues, the Office of Foreign Labor Certification (OFLC) will assign a Certifying Officer (CO).
Recruiting U.S. Workers
Once the various agencies determine the documents are in order, the employer must try to recruit domestic workers. They will get a notification as to when to begin active recruitment. The employer must also contact previous domestic employees to see if they can work.
The CO will post job orders on online seasonal job boards and other resources. Once all these steps are taken, the CO will accept an application for recruitment to make a final determination.
Temporary Labor Certification
If the temporary labor certification is approved, the CO will send a notice and an invoice. The Labor Certifications are typically provided no later than 30 days after the initial application.
Necessary Documents
When filing with the NPC, you will need to submit the following:
- H-2A Agricultural Clearance Order and required addenda
- Application for Temporary Employment Certification and required addenda
- Documentation for H-2A Labor Contractors and agents
Tips for Filing H-2A Visa Applications
The process of getting these necessary visas is complex. There may be many challenges along the way. The U.S. Department of Agriculture recommends employers create a checklist before they begin. They offer an online checklist process for ensuring you have all the documents necessary based on your needs.
Also, make sure you fully understand what compliance with the program looks like. For example, you must provide meals for workers or a place for them to make them. You are responsible for temporary housing and local transportation, as well.
Workers are only able to do the jobs as outlined in the offer. That means employers should consider their needs carefully. They cannot reassign work if a problem comes up.
Finally, prepare to maintain detailed records of payment to workers. Have a system to store these records for at least three years.
Using H-2A workers can be just what agricultural employers need, but it takes time and pre-planning to make it work. Create a checklist, follow the guidelines carefully, and prepare to house and feed temporary agricultural workers once they arrive. Most importantly, reach out to a U.S. immigration professional if you need assistance with this process.
