H2A Visa Lawyer
Without seasonal agricultural workers, American food prices would skyrocket while produce rotted in the fields due to the lack of labor. H2A visas play a vital role in U.S. food supply production by enabling American farmers to fill farmworker employment gaps through hiring workers from other countries.
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What is an H2A Visa?
An H2A visa allows temporary, nonimmigrant foreign workers to enter the U.S. and fill seasonal or temporary agricultural jobs. Seasonal work is defined as the need for additional help when an agricultural employer has work tied to a specific season due to an event or pattern. An example of the latter is a short growing cycle. Temporary is defined as less than one year.
Seasonal or temporary agricultural work may take place on any of the following:
H2A Visa Extensions
It is possible to extend an H2A visa for up to two more years. However, after the second extension, the worker must stay out of the U.S. for at least three consecutive months before they can apply for readmission to the H2A visa program.
How to Apply
Workers cannot apply for H2A visas on their own. Their potential employer or agent must file Form I-129, Petition for a Nonimmigrant Worker, on the worker’s behalf. Keep in mind there is a 45-day waiting period between application and issuance.
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H2A Visa Requirements
The employer, generally a farmer or rancher, must prove that there are not a sufficient number of U.S. workers available and qualified to perform seasonal or temporary agricultural labor. The employer must demonstrate that the job requires only short-term workers and that employing H2A workers will not “adversely affect” the wages and working conditions of U.S. workers. They must also show that the foreign worker has a residence outside of the U.S. that they do not intend to abandon.
Note that if the employer has been affected by a strike, layoff, or work stoppage within 60 days of the starting work date, they are not eligible for the H2A visa program.
The H2A Visa Process Explained
The entire process usually takes about 75 days. First, the agricultural employer must apply for a domestic job order via their State Workforce Agency. Then they must apply for a temporary labor certification from the Department of Labor’s Chicago National Processing Centers at least 45 days before needing the position filled. If the DOL approves the temporary labor certification, the employer then completes the H2A visa petition with U.S. Citizenship and Immigration Services (USCIS).
After the agricultural employer completes the necessary steps, then workers apply for H2A visas with the Department of State. They must complete interviews with the consulate. If approved, the workers head to the worksite for a start date arrival. The employer must keep careful records of worker arrivals and departures in order to prove compliance with H2A requirements.
An H2A visa holder’s spouse and unmarried children under the age of 21 may enter the U.S. under an H-4 nonimmigrant classification. However, family members with H4 status are not allowed to work in the United States.
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Contact an H2A Visa Lawyer
At Martinez Law, we represent our clients from transaction to litigation. If you are a petitioner seeking temporary agricultural workers, or if you are a foreign national seeking an H2A visa, you need the services of an experienced employment immigration lawyer at Martinez Immigration Law to help you through the process. Schedule a free consultation today.
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