The H-2A program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs for which U.S. workers are not available. H-2A non-immigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis. A U.S. employer (or an association of U.S. agricultural producers named as a joint employer) must file a Form I-129, Petition for Non-immigrant Worker on a prospective worker’s behalf.
To qualify for H-2A non-immigrant classification:
- The job offered must be of a temporary or seasonal nature
- The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work
- The employer must show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers
- Generally, a single, valid temporary labor certification from the U.S. Department of Labor must be submitted with the H-2A petition. (A limited exception to this requirement exists in certain “emergent circumstances.” See e.g., 8 CFR 214.2(h)(5)(x) for specific details).
H-2A Visa – Program Process
- Step 1: Employer Submits Temporary Labor Certification Application to the U.S. Department of Labor. Prior to requesting H-2A classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2A workers with the U.S. Department of Labor. For further information regarding the temporary labor certification requirements and process, see the Foreign Labor Certification, Department of Labor link to the right.
- Step 2: Employer Submits a Form I-129 to USCIS. After receiving a temporary labor certification for H-2A employment from the U.S. Department of Labor (DOL), the employer should file Form I-129, Petition for Non-immigrant Worker, with USCIS requesting H-2A workers. The DOL approved temporary labor certification must be submitted with Form I-129. (See the instructions to the Form I-129 for additional filing requirements.)
- Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission. After an employer’s Form I-129 is approved by USCIS, prospective H-2A workers who are outside the United States may apply with the U.S. Department of State at a U.S. embassy or consulate abroad for an H-2A visa (if a visa is required) and, regardless of whether a visa is required, apply to U.S. Customs and Border Protection for admission to the United States in H-2A classification.
H-2A Visa – Eligible Countries
H-2A visa petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A program.* The list of H-2A eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis. Designation of countries on the H-2A list of eligible countries will be valid for one year from publication.
Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A visa and H-2B visa programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu. Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.
A national from a country not on the list may only be the beneficiary of an approved H-2A visa petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition. [See 8 CFR 214.2(h)(2)(iii) and (5)(i)(F)(1)(ii) for additional evidentiary requirements.