H-2A Visa

H-2A Visa 2011-10-08T18:11:03+00:00

H-2A Temporary Agricultural Workers

The H-2A program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs for which U.S. workers are not available. 

H-2A nonimmigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis. A U.S. employer (or an association of U.S. agricultural producers named as a joint employer) must file a Form I-129, Petition for Nonimmigrant Worker on a prospective worker’s behalf.

To qualify for H-2A nonimmigrant classification:

  • The job offered must be of a temporary or seasonal nature
  • The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work
  • The employer must show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers
  • Generally, a single, valid temporary labor certification from the U.S. Department of Labor must be submitted with the H-2A petition.  (A limited exception to this requirement exists in certain “emergent circumstances.”  See e.g., 8 CFR 214.2(h)(5)(x) for specific details).

H-2A Program Process

  • Step 1: Employer Submits Temporary Labor Certification Application to the U.S. Department of Labor.  Prior to requesting H-2A classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2A workers with the U.S. Department of Labor. For further information regarding the temporary labor certification requirements and process, see the “Foreign Labor Certification, Department of Labor” link to the right.
  • Step 2: Employer Submits a Form I-129 to USCIS.  After receiving a temporary labor certification for H-2A employment from the U.S. Department of Labor (DOL), the employer should file Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting H-2A workers. The DOL approved temporary labor certification must be submitted with Form I-129.  (See the instructions to the Form I-129 for additional filing requirements.)
  • Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission.  After an employer’s Form I-129 is approved by USCIS, prospective H-2A workers who are outside the United States may apply with the U.S. Department of State at a U.S. embassy or consulate abroad for an H-2A visa (if a visa is required) and, regardless of whether a visa is required, apply to U.S. Customs and Border Protection for admission to the United States in H-2A classification.

H-2A Eligible Countries List

H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A program.*  The list of H-2A eligible countries is  published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis.  Designation of countries on the H-2A list of eligible countries will be valid for one year from publication.

Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs:  Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.  Of these countries, the following were designated for the first time this year:  Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

A national from a country not on the list may only be the beneficiary of an approved H-2A petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition.  [See 8 CFR 214.2(h)(2)(iii) and (5)(i)(F)(1)(ii) for additional evidentiary requirements.]

Period of Stay

Generally, USCIS may grant H-2A classification for the period of time authorized on the temporary labor certification (usually authorized for no longer than one (1) year).   H-2A classification may be extended for qualifying employment in increments of up to one (1) year. The maximum period of stay in H-2A classification is three (3) years.

An individual who has held H-2A nonimmigrant status for a total of three (3) years is required to depart and remain outside the United States for an uninterrupted period of three (3) months before seeking readmission as an H-2A nonimmigrant.  See 8 CFR 214.2(h)(5)(viii)(C) for further details regarding departure requirements.

Family of H-2A Workers

Any spouse and unmarried children under 21 years of age of an H-2A worker may seek admission in H-4 nonimmigrant classification.  Family members in H-4 nonimmigrant classification may not engage in employment in the United States.

Employment-Related Notifications to USCIS

Petitioners of H-2A workers must notify USCIS within 2 workdays* in the case of:

  • No show: An alien who fails to report to work within 5 work days of the employment start date on the H–2A petition or within 5 work days of the start date established by the petitioner, whichever is later;
  • Absconder: An H-2A worker who fails to report for work for a period of 5 consecutive workdays without the consent of the employer;
  • Termination: An H-2A worker who is terminated prior to the completion of agricultural labor or services for which he/she was hired; or
  • Early Completion: An H-2A worker who completes the agricultural labor or services for which he/she was hired more than 30 days earlier than the date specified in the H-2A petition.

The following information must be included on the notification:

  1. The reason for the notification, (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion”);
  2. The reason for untimely notification and evidence for good cause, if applicable;
  3. The USCIS receipt number of the approved H-2A petition;
  4. The petitioner’s information, including:
    • Name
    • Address
    • Telephone number
    • Employer identification number (EIN)
  5. The employer’s information (if different from that of the petitioner):
    • Name
    • Address
    • Telephone number
  6. The H-2A worker’s information:
    • Full Name
    • Date of birth
    • Place of birth
    • Last known physical address & telephone number

Additionally, to assist USCIS with identification of the H-2A worker, USCIS requests that, if available, petitioners also submit each H-2A worker’s:

  • Social Security Number, and
  • Visa Number,

An employer who fails to comply with these employment notification requirements, or fails to demonstrate good cause for untimely notification, may be required, following notice and opportunity to respond, to pay $10 in liquidated damages for each instance of noncompliance.

Please note: USCIS defers to the DOL’s definition of “workday” which, according to the Fair Labor Standards Act, generally means the period between the time on any particular day when an employee commences his/her “principal activity” and the time on that day at which he/she ceases such principal activity or activities.

How do I notify USCIS?

Notification should be made to the California Service Center via email or mail at the following addresses.

Email notification is strongly recommended to ensure timely notification.

California Service Center

By email: CSC-X.H-2AAbs@dhs.gov

By mail:

California Service Center
Attn: Div X/BCU ACD
P.O. Box 30050
Laguna Niguel, CA 92607–3004

Fee-Related Notifications to USCIS

A petitioner, agent, facilitator, recruiter or similar employment service is prohibited from collecting a job placement fee or other compensation (either direct or indirect) at any time from an H-2A worker as a condition of employment.

Petitioners are provided with the opportunity to avoid denial or revocation (on notice) of their H-2A petition if they notify USCIS that they obtained information concerning the beneficiary’s payment or agreement to pay a prohibited fee or compensation to any agent, facilitator, recruiter, or similar employment service only after they filed their H-2A petition. This narrow exception does not apply, however, where a petitioner knew or should have known at the time of filing of its H-2A petition that the prospective worker had paid or agreed to pay such recruitment-related fees to any such persons or entities.

Notification of an alien’s payment or agreement to pay the prohibited fees to a recruiter, facilitator or similar employment service must be made within 2 workdays of the petitioner gaining knowledge of such payment or agreement.

Petitioners must include the following information in their Fee-Related notification:

  1. The reason for the notification;
  2. The USCIS receipt number of the approved H-2A petition;
  3. The petitioner’s information:
    • Name
    • Address
    • Telephone number
  4. The employer’s information (if different from that of the petitioner):
    • Name
    • Address
    • Telephone number
  5. Information about the recruiter, facilitator, or placement service to which the alien beneficiaries paid or agreed to pay the prohibited fee:
    • Name
    • Address

Fees not prohibited are: the lesser of the fair market value or actual costs of transportation and any government-mandated passport, visa, or inspection fees to the extent that the payment of such costs and fees by the alien H-2A worker is not prohibited by statute or Department of Labor regulations.

How do I notify USCIS? 

Notification should be made to the California Service Center via email or mail at the following addresses. Email notification is strongly recommended, although not required to ensure timely notification.

California Service Center

By email: CSC.H2AFee@dhs.gov

By mail:

California Service Center
P.O. Box 10695
Laguna Niguel, CA 92607–1095