Texas H-2A Temporary Agricultural Worker Visa Attorneys

H-2A Temporary Agricultural Worker Visa

The H-2A agricultural guest worker program was passed by Congress in 1986 as part of the Immigration Reform and Control Act (IRCA). Since its inception, the program has been the primary legal mechanism through which U.S. employers have hired seasonal agricultural guest workers. To import an agricultural guest worker under the H-2A program, an employer must first meet the requirements set forth in statute and corresponding federal regulations. Similarly, a foreign national seeking to enter the U.S. as an H-2A guest worker must meet admissibility requirements. Both employer and guest worker requirements are set forth below.

1. EMPLOYER REQUIREMENTS:

To hire an H-2A agricultural guest worker, an employer must first apply for "labor certification" from the Department of Labor (DOL) that the guest worker positions sought to be created will not adversely affect U.S. workers. To get labor certification, the employer must meet several requirements.

An employer seeking labor certification must first establish that "there are not sufficient U.S. workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition." To do this, DOL regulations require that employers:

•i. Undertake "positive recruitment" efforts to obtain U.S. workers through informal channels, calling or sending letters to local farm labor organizations, migrant workers and other potential workers to find U.S. workers. Employers must also advertise the jobs in newspapers of general circulation or on the radio. Under federal regulations, Dept. Of Labor has the authority to:

•a. Require which publications and radio outlets are used and

•b. Determine whether the advertisements should be in English or another language.

•ii. The employer must utilize existing federal and state employment services with responsibilities over labor certification to contact U.S. workers through local, state, and Interstate job orders.

2. PETITION PROCESS:

Upon receiving certification, the employer next files a petition with the Dept. of Homeland Security (DHS) for permission to bring in the H-2A workers. Because most employers seek to hire several H-2A workers, individual aliens are not usually identified in an employer's petition. DHS does not, therefore, review the eligibility of the beneficiaries of employer H-2A petitions, leaving the question of admissibility to the local consulate at the time a particular H-2A applicant applies for a visa. DHS may take anywhere from 2 to 21 days to approve the requested number of visas.

Once a petition is approved, DHS notifies both the employer and the State Department. The State Department then informs the U.S. consulate in the country from which the workers will be applying that visa applications can be filed for the approved number of H-2A positions. It is the responsibility of the employer to inform the H-2A applicants directly or through an intermediary that the H-2A visas are available.

3. GUEST WORKER REQUIREMENTS:

Admissibility is only determined when the alien arrives at the U.S. consulate in the alien's country of origin. There, the worker provides a passport and an H-2A visa application. To be admitted, the alien must satisfy the typical requirements of any alien entrant into the United States. Broadly speaking, he or she:

•1. Must not have committed a serious criminal offense;

•2. Must not be a security threat; and

•3. Must not be (or have recently been) illegally present in the United States.

4. DURATION:

In general, an H-2A visa may be issued for up to one year. However, through extensions, an H-2A worker can remain in the country up to three years. In addition, H-2A workers are permitted to bring spouses and children with them. There is no cap on the number of foreign workers employers may import into the U.S. under the H-2A program, so long as the certification and other requirements are met.

Moreover, DHS does not have any express duty to ensure that H-2A visa holders are transported out of the country at the end of their employment period, beyond the general removal process already in law for aliens who overstay their visas. Current law provides that an alien who has overstayed an H-2A visa in the previous five years cannot return on another H-2A visa. Also, an alien illegally in the country for more than 180 days is barred from entering the U.S. for three years, and an alien who is illegally in the country for over a year is barred from entering the U.S. for ten years (generally referred to as the three and ten-year bars). The H-2A program provides foreign workers no monetary incentive to leave.

Visa processing can be difficult and confusing. If you would like the assistance of an experienced immigration attorney, please contact the firm by e-mail or call our offices. Bertolino LLP maintains offices in Austin, Houston and San Antonio. To reach an immigration law attorney in the Austin office, call 512.476.5757. For the San Antonio office, call 210.223.5553. For the Houston office, call 713.225.7474.

H-2B Temporary Non-Agricultural Worker Visa

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer must file a Form I-129, Petition for Nonimmigrant Worker, on a prospective worker's behalf.

2. CRITERIA FOR EMPLOYER:

•· The employer must establish that its need for the prospective worker's services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer's need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need

•· 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-2B 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 (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application)

3. CRITERIA FOR EMPLOYEE:

•· Have a valid job offer from a US employer to perform temporary or seasonal non-agricultural work;

•· Intend to return to their home country on expiration of the visa.

4. H-2B PROGRAM PROCESS:

•· Step 1: Employer Submits Temporary Labor Certification Application to the Department of Labor. Prior to requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam Department of Labor if the employment will be in Guam).* For further information regarding the temporary labor certification application requirements and process, see the "Foreign Labor Certification, Department of Labor" and "Foreign Labor Certification, Guam Department of Labor" links to the right.

•· Step 2: Employer Submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either the U.S. Department of Labor or Guam Department of Labor (if applicable), the employer should file a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting H-2B workers. The approved temporary labor certification must be submitted with the 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-2B 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-2B 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-2B classification.

5. ELIGIBLE COUNTRIES:

Effective January 19, 2010, nationals from the following countries are eligible to participate in the H-2B Program: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, the Netherlands, New Zealand, Nicaragua, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom and Uruguay.

Visa processing can be difficult and confusing. If you would like the assistance of an experienced immigration attorney, please contact the firm by e-mail or call our offices. Bertolino LLP maintains offices in Austin, Houston and San Antonio. To reach an immigration law attorney in the Austin office, call 512.476.5757. For the San Antonio office, call 210.223.5553. For the Houston office, call 713.225.7474.