H-2A, Migrant & Seasonal Workers, Visas

Hiring a Foreign National for Short-Term Employment H-2A Temporary Agricultural Workers

From AVVO.com, “Hiring a Foreign National for Short-Term Employment H-2A Temporary Agricultural Workers” by Carl Michael Shusterman, Attorney licensed in California, 28 Mar 2011.

What is the list of countries from which H-2A workers may be the beneficiaries of a petition?

As of January 18, 2010, only workers from the following countries can be the beneficiaries of an approved H-2A petition and may participate in the H-2A visa program:

Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Croatia; Dominican Republic; Ecuador; El Salvador; Ethiopia; Guatemala; Honduras; Indonesia; Ireland; Israel; Jamaica; Japan; Lithuania; Mexico; Moldova; The Netherlands; Nicaragua; New Zealand; Norway; Peru; Philippines; Poland; Romania; Serbia; Slovakia; South Africa; South Korea; Turkey; Ukraine; United Kingdom; and Uruguay.

What kind of evidence or documents will a U.S. employer need to file with Form I-129 for an H-2A nonimmigrant?

A U.S. employer who wants to file a petition for H-2A, as required by regulations should initially file the petition with either:

  • An original single valid temporary labor certification from the Department of Labor (or the Governor of Guam if the proposed employment is solely in Guam), indicating that qualified U.S. worker(s) are not available and that employment of the nonimmigrant will not adversely affect the wages and working conditions of similarly employed U.S. workers; or
  • An original notice from such authority that such certification cannot be made, along with evidence of the unavailability of U.S. workers and of the prevailing wage rate for the occupation in the U.S, and evidence overcoming each reason why the certification was not granted; and
  • Copies of evidence, such as employment letters and training certificates, that each named person meets the minimum job requirements stated in the certification.

Can an H-2A employer petition for more than one worker on the Petition for Nonimmigrant Worker (Form I-129)?

Yes. As of Janurary 17, 2009, an H-2A employer is permitted to file a Form I-129 with USCIS when petitioning for multiple H-2A beneficiaries from multiple countries. It is no longer necessary for multiple beneficiaries to obtain visas at the same consulate or enter at the same port of entry.

Must the name of all workers be included on Form I-129?

No. As of Januray 17, 2009, if an employer wishes to petition for multiple beneficiaries, some of whom are in the U.S. and some of whom are outside the U.S., the employer must name the beneficiaries who are in the U.S., and only provide the number of beneficiaries who are outside the U.S. This applies regardless of the number of beneficiaries on the petition or whether the temporary labor certification named beneficiaries.

Can an employer substitute beneficiaries on a Form I-129?

Effective January 17, 2009, an employer may substitute beneficiaries where H-2A workers failed to show up at the worksite or absconded, provided that the employer has complied with the new notification requirements. The petitioner may file an H-2A petition using a copy of the previously approved temporary labor certification to replace a worker where: (a) the worker’s employment was terminated early (before the completion of work); (b) the worker fails to report to work within 5 work days of the employment start date on the previous petition or within 5 work days of the date established by the employer, whichever is later; or (c) the worker absconds from the worksite.

What is the definition of “temporary nature”?

Employment of a “temporary nature” is when the employer needs to hire a temporary worker for a position that will, except in extraordinary circumstances, last no longer than one year.

What is the definition of “seasonal nature”?

Employment of “seasonal nature” is defined as work that is associated with a certain time of year, event, or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, requiring labor levels far above those necessary for ongoing operations.

How long can a non-immigrant stay in H-2A status?

H-2A workers are initially admitted for the time approved on the Labor Certification, with a maximum time of 1 year. H-2A status may be extended beyond this in 12-month increments for a maximum period of stay of three years.

Can an H-2A nonimmigrant only work full-time?

The hours and work schedule of the worker may vary. Most agricultural employees are paid on an hourly or at a piece rate.

Read more at: AVVO.com, “Hiring a Foreign National for Short-Term Employment H-2A Temporary Agricultural Workers” by Carl Michael Shusterman, Attorney licensed in California, 28 Mar 2011.

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