What is the H-2A temporary agricultural worker classification?
The H-2A program was first instituted to provide agricultural employers with a larger pool of workers during periods of anticipated labor shortages. H-2A workers are non-U.S. citizens who satisfy the regulatory requirements and who are qualified to perform the necessary duties.
In general, anyone seeking such a classification must have either a U.S. employer, an agricultural association acting as a joint employer, or a U.S. agent, obtain a temporary labor certification and file Form I-129 (officially called the “Petition for a Nonimmigrant Worker”). The prospective employee may not file their own Form I-129 – not to be confused with Form I-129F (“Petition for Alien Fiancé”).
In this guide, we will explain the process of obtaining an H-2A classification:
For the temporary labor certification, the Labor Department charges a $100 application fee and $10 per certified H-2A worker, though the total fee may be no greater than $1,000.
To file Form I-129, the U.S. employer will need to pay a $460 filing fee. The prospective employee, for their part, will need to pay a $190 fee for their nonimmigrant visa application if they are living outside the country.
It takes the Chicago National Processing Center (NPC) approximately 23 calendar days to process the DOL’s H-2A application. Once the Form I-129 has been filed, the petitioner can check the status of their case using the USCIS tool – they just need to provide the 13-character receipt number attached to their petition. In the final analysis, employees can generally begin work within 75 days following the submission of the initial State Workforce Agency (SWA) job order.
To qualify for the H-2A program, the petitioner must either be a:
- U.S. employer
- U.S. agent
- Or a member of a U.S. organization of agricultural producers who is also listed as a joint employer
In this guide, we will use the terms “employer” and “petitioner” to refer to the person who is filing Form I-129 and applying for the temporary labor certification. The terms “beneficiary,” “worker” or “prospective employee” may be used to refer to the person being hired to perform the agricultural labor.
To submit a Nonimmigrant Worker Petition with U.S. Citizenship and Immigration Services (USCIS), the petitioner must:
- Demonstrate that hiring an H-2A employee will not have a negative impact on the working conditions or wages of U.S. workers in a similar field.
- Show that the position could not be filled by a qualified U.S. worker who is also available, willing, and able to perform the required tasks.
- Attach a valid temporary labor certification (provided by the U.S. Department of Labor) to your H-2A petition – except in “emergent circumstances.”
- Offer the beneficiary a seasonal, or temporary, job.
Work is considered “seasonal” if the job is linked to a perennial pattern (or event) – such as a short growing season – which entails an increase in required labor. “Temporary labor,” on the other hand, refers to a job lasting no more than a year.
To obtain the required temporary labor certification, employers must satisfy the following eligibility criteria, as dictated by the Labor Department:
- Must be an employer with a valid Federal Employer Identification Number (FEIN) and a company that is physically present in the United States.
- Must be seeking to fill rolls that are agricultural in nature.
- Must be looking to fill a full time position.
The prospective employee must also be a national of a country found on the eligible country list, which is updated periodically on the federal registrar. Countries remain eligible for one year after the list is published. Employers may, in certain cases, hire workers from ineligible countries, but as we will explain in the next section, the petitioner will need to provide more evidence with their Form I-129.
If you’re interested in the process of applying for a specialized U.S. job that requires a minimum of a bachelor’s degree, read our guide on the H-1B nonimmigrant work visa.
The H-2A process can be broken down into three basic steps:
- Petitioner applies for a temporary labor certification with the Labor Department
- Petitioner files Form I-129 with USCIS
- Worker seeks admission into the United States, either by applying for an H-2A visa or, where a visa is not required, gaining entry at the border with an H-2A classification
First Step: Apply for Temporary Labor Certification
To obtain a temporary labor certification, the petitioner must first use the DOL FLAG system to submit Form ETA 790/790A (also called an “Agricultural and Food Processing Clearance Order”) to the SWA – and they must do this between 60 and 75 days prior to the first day of work. Once the job order has been sent, SWA will start recruiting U.S. workers and inform the petitioner of any alterations that need to be made to the order.
The petitioner will then need to submit the H-2A application to the NPC, who will respond with further instructions regarding the temporary labor certification process. This must happen at least 45 days prior to the first day of employment.
Once the employer receives a notice of acceptance from Chicago NPC, they must carry out the designated recruitment steps, making sure to follow the stipulated guidelines regarding the time, place, and content of the job advertisement. They must also create a recruitment report during this period, as described in the Federal Code of Regulations.
The employer must finally submit any remaining documents to Chicago NPC before a final determination can be made. The following forms may be required for the temporary labor certification process:
- Form ETA 790/790A
- Cover letter attached to the job order application, stating that the employer intends to petition for H-2A status
- Form ETA-9142A (officially called the “H-2A Application for Temporary Employment Certification and Appendix A”)
- Any other requested materials for H-2A contractors
The Labor Department strongly suggests watching the video tutorials on their website prior to using the online FLAG system.
Second Step: Submit Form I-129
When completing Form I-129, the petitioner would do well to consult the instructions provided by USCIS – pages 12 through 15 have information specifically devoted to the H-2A program. The employer must fill out all the pertinent sections of the Nonimmigrant Worker Petition, and when complete, they must sign it.
They will also need to attach the temporary labor certification and provide proof that the prospective employee fulfills the job requirements stated therein. In cases where the employer is a member of the E-Verify program, workers can start immediately after the petition is filed (for more information, see page 12 of the instructions, in the section entitled “E-Verify and H-2A Petitions”).
The employer may request more than one worker but no more than the maximum number set by the temporary labor certification. Workers may be named or unnamed. They must be named if they are:
- Present in the United States
- Not a national of an eligible country
- Required to satisfy the job requirements, as stated on the labor certification
As briefly mentioned above, the employer may hire workers who are not from eligible countries. If the petitioner wishes to pursue this path, USCIS recommends submitting separate petitions for those employees. The employer will also need to do the following:
- Provide the name of all the prospective workers who are nationals of ineligible countries
- Attach proof showing that it is in the interest of the United States to allow the prospective worker to enter the country as part of the H-2A program
Third Step: Prospective Employee Applies for H-2A Visa (if required)
This step only applies to those workers who are currently residing outside the United States. If required, the prospective employee will need to apply for an H-2A visa with the U.S. Department of State. To do this, they must complete Form DS-160 (officially called the “Online Nonimmigrant Visa Application”), and be sure to print out the confirmation page once finished. They will also need to obtain a photo that satisfies the State Department’s regulations.
Once the initial application is submitted, the applicant must schedule and attend an interview, to which they will need to bring a number of documents including the following:
- Valid passport
- Confirmation page of their DS-160
- Receipt for the application fee (if required)
- Receipt of approved Form I-129
If you’re on the market for a U.S. job requiring an advanced degree or exceptional ability, you may be interested in our guide on the EB-2 employment-based visa.
What constitutes an “emergent circumstance”?
For the purposes of the H-2A classification, a petitioner may bypass the temporary labor certification requirement when filing Form I-129, if and only if the prospective worker:
- Has been working for the employer already
- Was already approved as part of a previous Nonimmigrant Worker Petition
- Continues to perform the same duties for no more than 2 weeks beyond the end date listed on the initial petition
See 8 CFR 214.2(h)(5)(x) for a complete breakdown.
What is a “U.S. agent”?
A U.S. agent may be any one of the following:
- The employer of the prospective worker
- A representative of the worker and employer
- A person or entity who has permission to act on behalf of the employer
An agent may be needed when the prospective worker is generally considered self-employed or when a worker needs assistance handling contracts among several employers. An agent may also be required if a foreign employer is involved.
To learn more about U.S. agents and their role in the H-2A petitioning process, see 8 CFR 214.2(h)(2)(i)(F).
How does an employer prove that hiring a worker from an ineligible country is in the U.S. national interest?
To hire an employee who is from an ineligible country, the employer must offer proof demonstrating that employing such a worker is in the national interest of the United States. USCIS will consider the following factors in making their determination with respect to “national interest”:
- The possibility of “abuse, fraud, or other harm” to the H-2A program as a result of admitting a worker from an ineligible country
- Proof showing that workers from countries on the eligible country list are not available
- Proof that the prospective worker has received H-2A status in the past
- Evidence that U.S. workers are not available
- Any other factors regarding U.S. national interests
For more information regarding the H-2A eligible country list, see page 13 and 14 of the Form I-129 instructions.