H-2A/H-2B Visas: Temporary Agricultural Workers and Temporary Seasonal Workers

H-2A Introduction. The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Temporary or seasonal nature means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign workers is truly temporary. No, there is no cap on H-2A workers.

The H-2A visa cannot be self-petitioned. The U.S. employer must file a petition on behalf of their employees. The sponsor can be self-employed, a partnership, corporation agricultural association.

The H-2A visa requires employers to provide a number of benefits to their temporary workers, including minimum rates of pay at least at the prevailing wage level, transportation to and from their temporary residence as well as to new worksites, housing meeting federal standards, meals, and workers compensation insurance.

Employers must first conduct an affirmative search for available U.S. workers and the DOL must determine that admitting alien workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Employers are required to apply for H-2A certification at least 45 days in advance of the estimated date of need. DOL is required to act on H-2A certification requests at least 30 days in advance of the date of need, establishing a limited 15-day domestic recruitment period.

Period of Stay. The H-2A beneficiary-employee period of stay is limited to the time specified in the labor certification, but cannot exceed 1 year. Extensions of stay having similar limitations are limited  to a total stay of 3 years.

Dependents. Spouses and unmarried children are entitled to an H-4 visa and they can stay as long as the principal visa holder maintains valid H-2A status. Dependents may not work on dependent status; they have to apply for and be eligible for appropriate work visa.

The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. 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.

Foreign Labor Certification. The employer must file an application with the State Workforce Agency ("SWA") (exercising authority delegated by the Department of Labor ("DOL") 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, including:

• Recruitment: The employer must agree to engage in independent positive recruitment of U.S. workers. 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. workers. This must be an effort independent of and in addition to the efforts of the SWA. In establishing worker qualifications and/or job specifications, the employer must designate only those qualifications and specifications which are essential to carrying out the job and which are normally required by other employers who do not hire foreign workers.
• Wages: The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate ("AEWR"), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher.
• Housing: The employer must provide free housing to all workers who are not reasonably able to return to their residences the same day. Such housing must be inspected and approved according to appropriate standards.
• Meals: The employer must provide either three meals a day to each worker or furnish free and convenient cooking and kitchen facilities for workers to prepare their own meals. If meals are provided, then the employer may charge each worker a certain amount per day for the three meals.
• Transportation: The employer must provide reimbursement of reasonable transportation expenses. (1) After a worker has completed fifty percent of the work contract period, the employer must reimburse the worker for the cost of transportation and subsistence from the place of recruitment to the place of work if such costs were borne by the worker. (2) The employer must provide free transportation between the employer's housing and the worksite for any worker who is provided housing. (3) Upon completion of the work contract, the employer must pay economic costs of a worker's subsistence and return transportation to the place of recruitment.
• Workers' Compensation Insurance: The employer must provide workers' compensation insurance where it is required by state law. Proof of insurance coverage must be provided before certification is granted.
• Tools and Supplies: The employer must furnish at no cost to the worker all tools and supplies necessary to carry out the work, unless it is common practice in the area and occupation for the worker to provide certain items.
• Three-Fourths Guarantee: The employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the work contract period and any extensions. If the employer affords less employment, then the employer must pay the amount which the worker would have earned had the worker been employed the guaranteed number of days.
• Fifty Percent Rule: The employer must hire any qualified and eligible U.S. worker who applies for a job until fifty percent (50%) of the period of the work contract has elapsed.
• Labor Dispute: The employer must assure that the job opportunity for which H-2A certification is being requested is not vacant because the former occupant is on strike or is being locked out in the course of a labor dispute.
• Certification Fee: A fee will be charged to an employer granted temporary foreign agricultural, labor certification. The fee is $100, plus $10 for each job opportunity certified, up to a maximum fee of $1,000 for each certification granted.
• Other Conditions: The employer must keep accurate records with respect to a worker's earnings. The worker must be provided with a complete statement of hours worked and related earnings on each payday. The employer must pay the worker at least twice monthly or more frequently if it is the prevailing practice to do so. The employer must provide a copy of a work contract or the job order to each worker.

Recruitment of U.S. Workers. Upon receipt of an employer's application for temporary foreign agricultural labor certification, the SWA must promptly prepare a local job order and begin recruiting U.S. workers in the area of intended employment.

After an application is accepted for consideration, the National Processing Center will direct the centralized location of the SWA to prepare an agricultural clearance order to permit the recruitment of U.S. workers by the employment service system on an intrastate and interstate basis. The National Processing Center will require the employer to independently engage in specific positive recruitment efforts within a multi-state region of traditional or expected labor supply if the National Processing Center determines there is a sufficient supply of labor to be recruited.

Certifications Granted. If the National Processing Center determines that the employer has complied with the recruitment assurances, the adverse effect criteria, all time requirements and other appropriate requirements established by law and regulation, then the National Processing Center will grant the temporary foreign agricultural labor certification for the number of job opportunities for which it has been determined there are not sufficient U.S. workers available. After certification has been granted, the employer must continue to recruit U.S. workers until the H-2A workers have departed for the place of work. In addition, the SWA must continue to refer to the employer qualified and eligible U.S. workers who are seeking employment and who apply up to fifty (50) percent of the contract period, and the employer must hire these U.S. workers.

DHS Proposed H-2A Changes. The U.S. Department of Homeland Security has proposed rule modifications to provide employers with a streamlined hiring process for temporary and seasonal agricultural workers under the H-2A program.

The proposed modifications to the rule reduce current limitations and certain delays faced by U.S. employers and relax the current limitations on their ability to petition for multiple, unnamed agricultural workers. The rule also reduces from six to three months the time a temporary agricultural worker must wait outside the U.S. before he or she is eligible reenter the country under H-2A status. Additionally, under the proposed rule H-2A workers who are changing from one H-2A employer to another may begin work with the new petitioning employer before the change is approved by USCIS, provided the new employer participates in USCIS' E-Verify program. (For additional information, link to the Goulder Immigration Law Firm I-9 site at www.I-9EmploymentEligibility.com.)

In order to determine whether a worker is eligible to work in an H-2A job opportunity, SWAs must complete the entire I-9 process: (1) complete Form I-9, (2) issue a certification to the employer, and (3) properly retain I-9-related records.

H-2B Temporary / Seasonal

The H-2B visa is certification for temporary non-agricultural work, is available when an employer can demonstrate that unemployed Americans (and LPR's) are unavailable to fill the temporary position, and the number of visas is limited to a Cap of 66,000 each year, with half reserved for jobs with start dates in the first half of the government fiscal year and the remainder reserved for the second half. The 66,000 limit does not apply to spouses and children and they may enter the U.S. in H-4 status. H-2B workers are only counted against the cap in the first year of the H-2B petition and are not counted when returning for seasonal work or extensions.

Types of Jobs. For a foreign worker to be covered by an H-2B visa, the job the employer offers needs three essential criteria:

• The job and the employer's need must be one time, seasonal, peak load or intermittent;
• The job must be for less than one year; and,
• There must be no qualified and willing U.S. workers available for the job.

Labor Certification. The employer must go through a multi-step process to obtain an H-2B visa:

• Filing with SWA;
• SWA informs the employer on requirements for recruitment, wage options, and working conditions offered and refers qualified candidates to the employer for interviews. The employer will also be required to advertise the position to demonstrate a lack of availability of American citizen and permanent resident workers.
• The employer must also document that unions and other recruitment sources, appropriate for the occupation and customary to the industry, could not refer qualified U.S workers. After the employer completes the required recruitment, it must submit a recruitment report that explains the lawful job-related reasons for not hiring each U.S. worker that applied.
• The employer creates a recruitment report summarizing the results of the effort, including names and addresses of applicants, and reasons for not hiring particular interviewees. The employer must demonstrate that there are not immediately available citizens or permanent resident workers willing to work at the prevailing wage (or the actual wage paid by the employer if higher).
• SWA will forward the applications to the appropriate National Processing Center (NPC).
• The NPC certifying officer (CO) will review the applications. The CO will grant certification if he/she finds that qualified persons in the U.S. are unavailable and that the employment terms will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.
• The certifications/denials are given to the employer, and used to support a visa petition filed with USCIS. The Labor Certification Determination and the form I-129 are submitted to the USCIS.

The foreign potential employee must apply for a visa at his or her respective U.S. Consulate.

Period of Stay. The length of stay on an H-2B visa will be granted in increments of up to a year depending on the anticipated length of the employment period. The visa may be extended in one year increments for a total of three years, but USCIS will often deny extension requests because they question whether a job is really temporary.

Eligibility. Either skilled or unskilled workers may be employed on an H-2B visa. The visa is generally used for entertainers and athletes who do not meet the requirements of the O and P visa categories. Recently, the H-2B visa has become very popular with professions in the hospitality industry. The only workers specifically excluded are foreign medical graduates seeking to perform work in medical fields and agricultural workers.