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H-2A Visa

Employers anticipating a shortage of agricultural workers and in need must apply at least 45 days before certification is necessary. This 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. The employer must agree to give preference and engage in active recruitment of US workers. The H-2A certification is valid for up to 364 days. As temporary or seasonal agricultural employment, the work is performed at certain seasons of the year or for a limited time period of less than one year when the employer can show that the need for the foreign worker is truly temporary.

Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer's petition for such workers, the employer must file an application with the U.S. Department of Labor stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs. The Department's Employment and Training Administration (ETA) administers the labor certification program, while the Wage and Hour Division, Employment Standards Administration (ESA) has responsibility for enforcing provisions of worker contracts.

In employing a worker, the employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the term of the contract period. If the employer affords less employment, then the employer is obligated to pay the amount of which they would have earned if they had worked the contracted period.