About the Temporary Agricultural Work Visa (H-2)

With regard to visas. The H-2A Temporary Agricultural Program establishes an opportunity for agricultural employers who anticipate a domestic labor shortage to bring immigrant workers to the United States for agricultural performance or of a temporary or seasonal nature. The duration of work can be up to one or two months or up to 10 months in cases, or some cases that allow work in permanent employment from 10 months. All of these workers are covered by US wage laws, workers compensation laws and statutes. In addition to, Temporary workers and their employers are subject to their employer and/or individual mandates under the Affordable Care Act. Concerned that guest workers may be unfairly exploited, the U.S. Department of Labor's Hours and Wages Division is particularly vigilant in vetting and inspecting H-2A employers. Unlike other guest worker programs, there is no maximum number of H-2A visas assigned each year.

The required paperwork:

The process for a worker to be able to start on H-2A status includes a work order from the state workforce agency, a temporary work certificate from the U.S. Department of Labor and Employment's Office of Foreign Employment Certification, Form I-129 approval from U.S. Citizenship and Immigration Services (Branch from the US Department of Homeland Security), a visa from a consular officer representing the US Department of State, and Form I-94 issued.

1- Job order (ETA Form 790):

- An offer of employment (ETA Form 790) must be submitted with the State Manpower Agency (SWA) in the intended field of employment between 60 and 75 days before the workers' need date. Every government workforce agency has a postal address and some have websites, contact email addresses, and phone numbers. The government workforce agency is also responsible for handling work applications for the H-2B visa, but the specific contact person or mailing address may vary. Work orders are publicly listed by the government's Manpower Agency (including on its website). In addition, the employer must advertise the job in local newspapers. Any US citizen applying for the job should be given one.

2- Temporary Employment Certificate H-2A from the US Department of Labor:

The employer needs to obtain a Temporary Work Certificate (TLC) from the US Department of Labor and Employment's Office of Foreign Employment Certification. Note that this work certificate should not be confused with the PERM work certificate for Employment-Based Permanent Immigration or with the Work Status Application for H-1B and similar cases. It is also separate from a similar process for obtaining an H-2B Temporary Employment Certificate.

The application package must include Form ETA 9142A and an Acceptable Employment Order (ETA Form 790) from the State Manpower Agency.

In order for the certificate to be approved, the department must verify the following:

There is not a sufficient number of American workers who are able, willing, and qualified to perform the temporary and seasonal agricultural jobs for which nonimmigrant foreign workers are sought; and

Hiring H-2A workers will not adversely affect the wages and working conditions of similar American workers. The statute and administrative regulations provide several worker protections and employer requirements regarding wages and working conditions. The Wages and Hours Division of the Department (WHD) is responsible for enforcing the provisions of worker contracts.

3- Petition for Form I-129 Submitted to US Citizenship and Immigration Services:

The employer must file Form I-129 (Petition of Nonimmigrant Worker) on behalf of the potential worker (beneficiary) with USCIS, with the Employment Order (ETA Form 790) and the Temporary H-2A Approved Employment Certificate as initial evidence. Note that Form I-129 is used for a large number of nonimmigrant worker cases, not just H-2A. Those using it for an H-2A need to fill out the main form followed by the H. Rating appendix

An H-2A case is one in which a single Form I-129 can be used for multiple beneficiaries. Additional beneficiaries may be listed in Attachment 1 (pages 35-36) of Form I-129. However, all beneficiaries listed in a single petition must have the same required start and end dates, and they are all approved together. In the event that different start dates are required for different beneficiaries, or if one has a more complex situation (so that a beneficiary petition may be delayed), employers are advised to file a separate Form I-129 for these employees.

The filing fee for Form I-129 is $460.

In general, Form I-129 petitions can be filed up to six months before the start date of employment. However, since the initial evidence of the petition includes a work order, which must be submitted between 60 and 75 days before the start date, the application can actually be submitted at most 75 days before the start date