Overview : H2A Temporary Agricultural Workers
Posted Sep 07, 2001

As part of our commitment to keep our MurthyBulletin readers informed and up to date, we have been providing an overview of the different visa categories, looking at each category in turn, according to their alphabetical order. We have now reached the H2A category, which is the category for temporary agricultural workers.

This category is for temporary workers performing “agricultural labor or services…of a temporary or seasonal nature,” as defined in the Immigration and Nationality Act (INA). Workers under this definition typically are farm workers, orchard workers, and ranch hands. The requirements for this category are narrowly defined, stipulating that the applicant must be coming temporarily to the U.S. in order to undertake work of a temporary nature. A crucial element of the H2A category is that there be a temporary need on the part of the employer. Also the work must not be part time. The INS has denied H2A petitions where it has found that there was a chronic shortage of workers, giving rise to a continuous temporary need; such a continuous need was the equivalent of a permanent need. In addition, workers under this category must prove that they have a nonimmigrant, i.e. temporary, intent. There are several special requirements for employers of H2A workers, including providing housing, meals, and transportation costs.

To process an H2A application, the employer must also show that there are no U.S. workers in the local area who are capable of performing such services. The H2A process therefore involves a labor certification (LC), somewhat similar to that used for permanent, employment-based immigration. Approval of the labor certification constitutes a finding that: (a) there are no U.S. workers available, and (b) the employment of the foreign worker will not affect the wage rate and working conditions of similarly employed workers in the U.S.

The temporary labor certification application is filed with the local state-level labor office, and processed in a relatively expedited manner. There is also what is known as a “50% Rule,” which requires the employer to hire U.S. farm workers who apply for the job until 50% of the work contract period has been completed. In this regard, the employer must make concerted efforts to hire U.S. workers, including the use of electronic data banks. Advertising the job and consulting with local unions is required, and efforts to recruit U.S. workers must be documented.

The U.S. Department of Labor (DOL) usually grants applications for no more than 1 year, although in practice it may be nearly impossible to obtain approvals for longer than 10 months. The DOL may even consider 6 months to be too long. Much is left to the discretion of the individual DOL officer.

Upon approval of the LC, a petition is then submitted to INS. Multiple beneficiaries can be included on the same petition as long as they are performing the same services, for the same time period and in the same location.
A U.S.- based agent is required for the petitioner in order to file the petition, in the case where the employer is a foreign entity.

As noted below, DOL will shortly be taking over the processing of H2A petitions. Hopefully, handling the entire process through the one agency will reduce the overall processing time.

Admission and Extension

H2A workers are admitted for the time on the Labor Certification, with a maximum of 1 year. Extensions may be granted, but for not more than 12 months at a time and with a maximum stay of 3 years. If an extension is required, a new Labor Certification is required or a notice that the Labor Certification cannot be made.

Note that the H2A nonimmigrant category is undergoing change as regulations have been published which transfer authority from INS to the Department of Labor, so that the Department of Labor will be adjudicating petitions. This rule is likely to be implemented in October 2001.