The H2A agricultural program offers a way for agricultural employers in the US anticipating a shortage of domestic workers to bring in nonimmigrant workers for agricultural labor work for temporary durations. Through the program, all seasonal positions, especially for labor-intensive work like fruit and vegetable harvesting, get filled. The temporary programs last for up to 10 months.
As the workers benefit from entering the US and earning a living, the employers are responsible for submitting their applications to visa agencies for H2A program application. The demand for H2A workers has been increasing over the years, and employers need to understand how the processes work for an adequately staffed agricultural operation.
Read on for what employers should know about the H2A visa regulations.
The Aim Of The H2A Visa Regulations
Staffing agricultural operations in the US is a challenge given its competition from less labor-intensive and high-paying jobs. This challenge necessitated the formation of the H2A visa program to address the labor shortage.
The H2A visa program ensures adequate labor supply in agricultural operations while protecting US workers. This program also addresses workplace fairness and safety. With good working conditions, the program helps to increase domestic food production, reducing the need to import food.
Basic Provisions And Requirements For Employers
Before the US Citizenship and Immigration Services, USCIS approves an employer’s petition for H2A workers, they will require them to meet the following conditions:
- The employer should file an application stating that there are insufficient workers that are qualified, willing, able, and available.
- The employment of aliens will not affect the working conditions and wages of US workers under similar terms.
- The employer initially attempted to fill the empty jobs through US workers.
Employee’s Eligibility For H2A Employment
An employee is eligible for H2A agricultural workers visa if they meet the following conditions:
- Have a valid US employer job offer to do seasonal or temporary agricultural work.
- Intend to return to their home country upon the expiration of their visa.
The H2A Visa Application Process
If the employer and employee meet the above qualifications, they can start the application process for approval by relevant bodies. The H2A visa regulations stipulate the following application steps:
Certification Of Labor
An employer will get a temporary labor certification from the Department of Labor before processing and approval by the USCIS. This form, ETS-790, should be submitted within 60-75 days before the work begins. The employer should then submit ETA Form 9142 45 days before work starts with an approved job order. Lastly, at least 30 days before the start of the job, the employers should submit a recruitment report. This report states that they could not fill their vacant positions with US workers. If certified, an employer will pay one hundred dollars plus ten dollars worker fee for each worker.
The H2A Application
Once certified by DOL, an employer can file a petition, the I-129, for nonimmigrant workers. The petition is followed by an initial review within two weeks which, upon approval, the individual workers can start the processes on their end. These processes include consular interviews, submission of a picture and fingerprints, and entry into the E-Verify system.
USCIS will request additional evidence where there are deficiencies in the application and process the application until approval or denial of the petition. If the visa is approved, the worker will wait for their employer to complete the third step.
Admission Of The Worker Into The US
The admission of an approved worker into the US comprises the submission of applications by the employer. Ten days before the work begins, the employer will submit an I-94 application for their workers and pay the required fee. The workers can then enter the US not earlier than ten days before the start of the work.
Upon the arrival of the workers into the US, the H2A visa regulations require employers to maintain employment records, certify true information and abide by the laws affecting their workers.
Employer Contractual Obligations
An employer that files for an H2A visa application must also meet employee rights regarding their wages, recruitment, housing, transportation, meals, insurance, labor disputes, tools and supplies, and certification and recruitment fees.
Similar to internal hiring processes, an employer seeking H2A agricultural workers should engage in independent recruitment of US workers. This implies an active effort comprising radio and newspaper advertisements in areas requiring labor supply.
Upon successful worker qualification, an employer should guarantee up to 75% employment duration specified in the contract. During this period, the employers will pay a worker’s compensation insurance or equivalent and provide proof. The employer will also pay special rates to the H2A workers in the effect of the duration to perform the work or piece rates of pay. In the latter case, the rate should be similar to the prevailing rate in the area of intended employment.
To ensure the H2A worker efficiency, the employer will provide the tools and supplies at no cost unless it is common practice for the employees to provide some items. Employers will also provide free housing to H2A workers who cannot return to their residence the same day and transportation to and from the job site. The employer will also reimburse transportation for a worker who completes 50% of the work contract period, subsistence from the recruitment place to the workplace. Upon the completion of the contract, the employer will pay for return transportation to the resident country or the next job. In addition to housing, the employer will provide three meals per the DOL specified cost or furnish a convenient kitchen facility for the workers to prepare meals.
Lastly, an employer is prohibited by H2A visa regulations from hiring an H2A worker if they laid off a US worker within 60 days of need unless the US worker rejects the job offer. To negate a termination, the employer will notify DOL no later than two working days after the abandonment or termination.
The Bottom Line
The H2A regulations aim to meet the need for US agricultural workers. As a potential employer, being aware of the rights of the H2A workers regulations, including wages, housing, and insurance, before hiring is advisable, as violations attract penalties. With a good understanding of the hiring process and your contractual obligations, you will save yourself from low labor stress during peak seasons.
