An H-2A visa allows a foreign national worker into the United States for temporary agricultural work. There are several requirements of the employer in regard to this visa. The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.[1] In 2015 there were approximately 140,000 total temporary agricultural workers under this visa program. Terms of work can be as short as a month or as long as 10 months in most cases, although there are some special procedures that allow workers to stay longer than 10 months. All of these workers are covered by U.S. wage laws, workers' compensation and other standards; additionally, temporary workers and their employers are subject to the employer and/or individual mandates under the Affordable Care Act. Because of concern that guest workers might be unfairly exploited, the U.S. Department of Labor Wage and Hour Division is especially vigilant in auditing and inspecting H-2A employers. H-2A employers are the only group of employers who are required to pay for free housing and inbound and outbound transportation, and must provide meals for their workers. H-2A agricultural employers are among the most heavily regulated and monitored employers in the United States. Unlike other guest worker programs, there is no cap on the number of H-2A visas allocated each year.[2]
Employing H-2A workers
Wages
The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must be at least as high as the applicable Adverse Effect Wage Rate (AEWR),[3] federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher. The AEWR is established every year by the Department of Labor for every state except Alaska.
If a worker will be paid on a piece rate basis, the worker must be paid the prevailing piece rate as determined by the State Workers Agency (SWA). If the piece rate does not result in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the hourly rate, then the worker's pay must be supplemented to the equivalent hourly level. The piece rate offered must be no less than what is prevailing in the area for the same crop and/or activity.[3]
Hiring
Hiring means an active effort, including newspaper and radio advertising in areas of expected labor supply. Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers in the same or similar crops and area to secure U.S. workers. This must be an effort independent of and in addition to the efforts of the SWA for at least 15 days. In establishing worker qualifications and/or job specifications, the employer must designate only those qualifications and specifications which are essential to carrying out the job and which are normally required by other employers who do not hire foreign workers.
Livelihood of workers
Housing and meals
The employer must provide free housing to all workers who are not reasonably able to return to their homes or residences the same day. Such housing must be inspected and approved according to appropriate standards. The housing provided by the employer must meet all of the Department of Labor Occupational Safety and Health Administration (OSHA) standards that were set forth at CFR 1910.142 or the full set of standards at 654.404-645.417.[3]
An alternative form of housing is rental housing, which has to meet local or state health and safety standards. In North Carolina, the current state standards include no provision for doors and windows, 75 ft3 per person or 27 people per refrigerator, one wash tub per 30 people with hot and cold water, facilities for drying clothes; there are no sanitary requirements for mattresses provided, 1 toilet/15 people or 1 urinal/25 men, and 1 shower per 10 people with no privacy stalls.[4]
The employer must either provide three meals a day to each of the workers or furnish free and convenient cooking and kitchen for workers to prepare and cook their own meals. If the employer provides the meals, then the employer has the right to charge each worker a certain amount per day for the three meals.[3]
There are several provisions on the transportation of workers. The amount of transportation payment shall be no less (and shall not be required to be more) than the most economical and reasonably similar to the transportation charges for the distances involved.[3] The employer is responsible for several forms of transportation depending on the situation. After the worker completes at least half of the work contract period, the employer must reimburse the worker for the costs of transportation and subsistence from the place of recruitment to the place of work if these expenses were charged to the worker. The employer must provide free transportation to the worker between the employer's housing and the area of work. And upon completion of the work contract, the employer must pay the costs of a worker's subsistence and transportation back to the place of recruitment. Some special conditions apply when the worker does not return to the area of recruitment because they are moving to another job. If the employer compensates foreign workers for transportation costs then they must do so for U.S. workers as well. If the employer provides transportation for foreign workers, they must provide transportation to US workers as well.
The employer must cover the cost of tools and supplies necessary to carry out the work at no cost to the worker, unless this is uncommon and the occupation calls for the worker to provide certain items.
Application process
The process in order for a worker to be able to start in H-2A status involves a job order from a State Workforce Agency, a Temporary Labor Certification from the U.S. Department of Labor Employment & Training Administration's Office of Foreign Labor Certification, a Form I-129 approval from the U.S. Citizenship and Immigration Services (a branch of the U.S. Department of Homeland Security), a visa from a consular officer representing the U.S. Department of State, and a Form I-94 issued by U.S. Customs and Border Protection at a port of entry.[5][6][7]
Job order (ETA Form 790)
A job offer (ETA Form 790) must be filed with the State Workforce Agency (SWA) in the area of intended employment between 60 and 75 days before the date of need for workers.[5] Each State Workforce Agency has a mailing address and some have websites, contact email addresses, and phone numbers. The State Workforce Agency is also responsible for handling job orders for the H-2B visa, but the specific contact person or mailing address may differ.[8] The job orders are publicly listed by the State Workforce Agency (including on their website). Additionally, the employer must advertise for the position in local newspapers. Any United States citizen who applies for the job must be given one.[9]
H-2A Temporary Labor Certification from the U.S. Department of Labor
The application package must include ETA Form 9142A and an accepted Job Order (ETA Form 790) from the State Workforce Agency. It must be filed with the Chicago National Processing Center or online through the iCert portal, no less than 45 days prior to the employer's date of need.[5]
In order to approve the certification, the Department must verify that:
there are not sufficient able, willing, and qualified U.S. workers available to perform the temporary and seasonal agricultural employment for which nonimmigrant foreign workers are being requested; and
employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide numerous worker protections and employer requirements with respect to wages and working conditions. The Department's Wage and Hour Division (WHD) has responsibility for enforcing provisions of worker contracts.
Form I-129 petition submitted to U.S. Citizenship and Immigration Services
The employer must submit a Form I-129 (Petition for a Nonimmigrant Worker) on behalf of the prospective worker (beneficiary) with the United States Citizenship and Immigration Services, with the job order (ETA Form 790) and the approved H-2A Temporary Labor Certification as initial evidence.[6] Note that Form I-129 is used for a large number of nonimmigrant worker statuses, not just the H-2A. Those using it for the H-2A status need to fill the main form followed by the H classification supplement, Pages 13–17.[10]
The H-2A status is one of the statuses where it is possible for a single Form I-129 to be used for multiple beneficiaries. Additional beneficiaries may be listed on Attachment 1 (Pages 35–36) of Form I-129. However, all beneficiaries listed in a single petition must have the same requested start and end date, and they are all approved together. In case different start dates are needed for different beneficiaries, or one of them has a more complicated situation (so that beneficiary's petition may be delayed) employers are advised to file separate I-129s for such employees.[6][10]
The filing fee for Form I-129 is $460. Forms are automatically expedited given the seasonal and time-sensitive nature of agricultural work, but it is also possible to request Premium Processing Service for $1225 to get an initial response within 15 calendar days.[11]
In general, Form I-129 petitions can be submitted six months in advance of the job start date. However, since the petition's initial evidence includes a job order, that must be filed between 60 and 75 days before the start date, the application can effectively be submitted at most 75 days prior to the start date.
Eligible Countries List
United States Citizenship and Immigration Services is given an Eligible Countries List for H-2 visas (with slight differences between the H-2A and H-2B) and generally approves petitions only if the beneficiary is from a country on the list. Updates to the Eligible Countries List are published in the Federal Register. Effective January 18, 2016 the Eligible Countries List contains 84 countries, and the full list can be found on the USCIS website.[6] The list has expanded since it originally started: 16 new countries having been added as recently as November 2015.[12]
According to official regulations, a national from a country not on the list may only be the beneficiary of an approved H-2A petition if the Secretary of Homeland Security determines that it is in the U.S. interest for him or her to be the beneficiary of such a petition.[6]
A country may be added to the list based on a recommendation from the U.S. Department of State, the country's government, an employer that would like to hire nationals of the country in H-2A status, or any other interested party or parties. When designating countries to include on the list, the Secretary of Homeland Security, with the concurrence of the Secretary of State, will take into account factors including, but not limited to:[6]
The country's cooperation with issuing travel documents for citizens, subjects, nationals and residents of that country who are subject to a final order of removal;
The number of final and unexecuted (meaning completed but not yet carried out) orders of removal against citizens, subjects, nationals and residents of that country;
The number of orders of removal executed against citizens, subjects, nationals and residents of that country; and
Other factors as may serve the U.S. interest.
Visa application
If the beneficiary is already in the United States in a valid status and with no requirement to leave the United States, the beneficiary can simply transition to H-2A status. If the beneficiary is outside the United States, two additional steps are needed:[6]
The beneficiary must apply for a H-2A visa to a United States consulate in his or her home country with the approved Form I-129 petition, ETA Form 790, approved Temporary Labor Certification, and other necessary documents. The visa decision is made by a consular officer representing the U.S. Department of State.
Armed with the H-2A visa and other documents, the beneficiary may present himself or herself at a port of entry, where an officer working for U.S. Customs and Border Protection issues the beneficiary a Form I-94 for H-2A status.
Validity
Basic rules
Below are the basic rules governing the H-2A status:[6]
Each Form I-129 petition for initial employment or extension of employment can be for a duration of at most one year.
After the worker has completed three years in H-2A status, the worker must leave the United States for at least three months before being able to return in H-2A status. In fact, the rules count continuous stay across all H statuses for the purpose of counting the three years.
Calculation of interrupted stay
For workers who leave the United States temporarily, the following rules apply with respect to excluding time outside the United States:[13]
If the worker was in the United States for 18 months or less, then H-2 time is interrupted if the worker is outside the United States for at least 45 days but less than 3 months. This means that time spent outside the United States will not count toward the 3-year limit, but rather, upon return, the worker's clock will resume from where it left off at the time of departure.
If the worker has been in the United States for somewhere between 18 months and 3 years, the worker's H-2 time is interrupted if the worker is outside the United States for at least 2 months but less than 3 months.
Note that the time needed outside the United States in order to qualify for an interrupted stay exceeds the maximum time permissible for automatic visa revalidation, which is 30 days.
If the worker is outside the United States for 3 months or more, the worker's clock is completely reset, and whenever the worker next returns on a H-2 visa, the worker's time in the United States starts from zero.
History
Introduction in 1986
The Immigration and Nationality Act of 1952 introduced a temporary unskilled worker category, the H-2 category. The Immigration Reform and Control Act of 1986 subdivided this category into two subcategories: the H-2A (an uncapped category for temporary agricultural workers) and H-2B (a capped category for temporary workers in other domains). The particular importance given to temporary agricultural workers was intended to balance the potential decline in the illegal immigrant population due to the increased border security and immigration enforcement provisions of the Act.[14]
Introduction of Premium Processing Service in 2001
On June 1, 2001, the Premium Processing Service was introduced at a price of $1000, available for Form I-129 petitions for most statuses, including the H-2A status.[15] In November 2010, the Premium Processing Service fee was hiked from $1000 to $1225 as part of a general change to the fee schedule for USCIS forms.
Changes to the Eligible Countries List
The Eligible Countries List for the H-2A was created through a rule published by the U.S. Department of Homeland Security on December 18, 2008 and effective January 17, 2009.[16] The list has grown gradually from 28 countries in the beginning to 84 countries as of 2016. Summarized below are the dates of various Federal Register announcements on updates to the list, with the total number of countries, number of new countries added, and the names of the new countries added. The dates listed below are the announcement dates. The date that the list becomes effective may be a little after the announcement date. Generally, updated lists become effective starting around January 17 or January 18 of the year.
Note that the count below is of the number of visas issued by a United States consular officer. The years here are Fiscal Years, so for instance the year 2004 refers to the period from October 1, 2003 to September 30, 2004. These should approximately match but may not exactly match with the number of Form I-129 approvals of H-2A status by the United States Citizenship and Immigration Services, or the actual number of workers who arrive in the United States in H-2A status.[25] The countries included in the chart below are selected as the top users in Fiscal Year 2014. In addition to the top users of Fiscal Year 2014, Thailand and Haiti are included because they used to be bigger users of the program in past years. Note that the Eligible Countries List became active starting January 2009, so Haiti and Thailand had a dip in their usage between the time the list became active and the time they were added to the list.
As can be seen from the data below, Mexico has consistently accounted for over 90% of the use of the H-2A visa. Currently, the other source countries for H-2A visa holders are mostly from the Americas, in regions physically close to the United States. The biggest user from the African continent is South Africa (accounting for over 90% of usage from Africa) and the biggest user from Europe is Romania (accounting for about half of the usage from Europe). Also, whereas Mexico and Peru have been consistently strong users of the program since 1997 (when records started being kept), the usage by other countries has started more recently.
Haiti (became eligible in 2012 and became ineligible again in 2018)
1997
16,011
15,335
0
0
349
0
2
0
0
0
1998
22,676
21,969
6
0
378
7
0
0
0
0
1999
28,568
27,293
173
5
468
12
11
0
0
0
2000
30,201
28,442
551
93
407
6
21
0
2
0
2001
31,523
29,273
971
4
458
5
27
1
3
4
2002
31,538
29,006
1,209
0
466
1
27
0
3
0
2003
29,882
27,117
1,323
17
480
4
63
1
110
3
2004
31,774
28,683
1,326
39
614
3
114
368
339
3
2005
31,892
28,563
1,247
87
687
15
130
150
374
5
2006
37,149
34,195
1,054
110
841
3
146
87
11
78
2007
50,791
47,399
1,159
179
900
21
166
157
10
110
2008
64,404
59,669
1,375
534
887
21
225
242
32
558
2009
60,112
55,693
1,234
807
910
8
128
166
11
296
2010
55,921
52,317
1,123
660
830
20
194
206
11
0
2011
55,384
51,927
1,018
624
809
20
240
165
9
0
2012
65,345
61,324
1,122
702
993
33
260
185
11
58
2013
74,192
69,787
1,298
982
361
173
276
164
7
14
2014
89,274
83,674
1,591
1,453
790
525
318
195
15
15
2015
108,144
102,174
1,947
1,426
1,019
193
363
190
17
50
2016
134,368
123,231
2,335
1,680
874
400
388
202
25
65
2017
161,583
147,272
2,800
3,451
942
415
445
216
29
64
2018
196,409
180,420
3,562
3,936
946
334
483
249
36
1
2019
204,801
188,758
4,816
2,537
974
306
593
236
32
0
2020
213,394
197,908
5,508
2,123
536
299
693
224
4
0
Number of petitions approved by USCIS broken down by quarter and state
Since Fiscal Year 2012, the USCIS has released data on the number of H-2A petitions (Forms I-129) received, approved, and denied, broken down by quarter, U.S. state, and employer.[26] Note the following caveats:
Years and quarters use the United States fiscal year, that starts on October 1 of the previous calendar year and ends on September 30 of the calendar year. For instance, 2012 Q1 starts on October 1, 2011 and ends on December 31, 2011.
Since a single H-2A petition can be filed for multiple workers, the number of approved petitions is substantially less than the number of workers who were approved.
The quarter in which a petition is received may not be the same as the quarter in which it is approved. Similarly, the quarter in which a petition is approved may not be the same as the quarter in which a visa based on the petition is issued (however, the process is likely to span at most two adjacent quarters, due to the expedition of processing for H-2A petitions and the fact that a petition cannot be filed more than 75 days before the start date).
Variation based on the quarter and state reflects seasonal and geographical differences in demand for agricultural labor. In FY 2017, more than half of all H-2A positioned were certified to work-sites in just five states: North Carolina, Washington (state), Florida, Georgia (U.S. state), and California.[27]
Data for some quarters is included below.[28][29][30]
^Staff writer (January 17, 2011). "Barbados added to US work visa list". BBCCaribbean.com. 21:40 GMT. Retrieved January 17, 2011. Barbados is among 15 countries added to a list eligible to participate in two United States foreign workers programs known and H2A and H2B. [. . .] Jamaica, Belize and the Dominican Republic are among the 53 nations approved under both programs.
^Farmworker Housing in North Carolina. Lori F. Khamala & Melinda Wiggins. September 2004. Farmworker Advocacy Network, North Carolina. 4 December 2007 [1]Archived June 9, 2007, at the Wayback Machine
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