H2A VISA – DLG

H-2A Visa Frequently Asked Questions

What is the H-2A visa, and who is eligible for it?

The H-2A visa is designed for foreign agricultural workers who are needed in the United States for temporary or seasonal agricultural work. Eligibility requirements include having an offer a job that is of a temporary or seasonal nature, demonstrating that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work, and showing that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

What types of agricultural work qualify for the H-2A program?

The H-2A program covers a wide range of seasonal or temporary agricultural work, including, but not limited to planting, cultivating, harvesting, and processing crops, as well as the raising and management of livestock.

How does the H-2A visa application process work?

The application process typically involves the following steps:

A U.S. employer files a Form ETA-9142A, Application for Temporary Employment Certification, with the U.S. Department of Labor (DOL).

If the DOL approves the application, the employer files Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS).

If USCIS approves the petition, the foreign worker applies for the H-2A visa at the U.S. embassy or consulate in their home country.

How long can an H-2A visa holder stay in the U.S.?

Generally, USCIS may grant H-2A classification for up to the period of time authorized on the temporary labor certification. H-2A classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A classification is 3 years.

A person who has held H-2A nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2A time.

Certain periods of time spent outside of the United States may “interrupt” an H-2A worker’s authorized stay and not count toward the 3-year limit. Consult with your immigration attorney for guidance.

Can H-2A visa holders bring their family members with them to the U.S.?

H-2A visa holders can request H-4 visas for their spouse and unmarried children under 21 to accompany them to the U.S. However, H-4 visa holders are not eligible to work in the U.S.

Can H-2A visa holders change employers in the U.S.?

Yes, H-2A visa holders can change employers in the United States under certain conditions. However, changing employers is not an automatic process, and there are specific steps and requirements that must be followed:

New Employer’s Labor Certification: The new employer must go through the process of obtaining a labor certification from the U.S. Department of Labor (DOL) to demonstrate the need for the H-2A worker. This includes conducting recruitment efforts to ensure there are no qualified and available U.S. workers for the position.
Form I-129 Petition: Once the new employer has an approved labor certification from the DOL, they must file Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS) on behalf of the H-2A worker. The petition should include the approved labor certification and other required documentation.
Change of Employer Approval: USCIS must approve the Form I-129 petition, and the H-2A worker can then change employers and work for the new employer as specified in the approved petition.

It is crucial that both the current and prospective employers, as well as the H-2A worker, follow the proper procedures and meet all the program requirements when seeking a change of employer. H-2A workers should not change employers without obtaining the necessary approvals from the DOL and USCIS.

Can H-2A visa holders apply for U.S. permanent residency (a green card)?

H-2A visa holders can apply for U.S. permanent residency (a green card), but they typically cannot directly transition from H-2A status to a green card without going through additional steps and meeting certain eligibility requirements. Some common pathways are employment-based green card sponsorship, family sponsorship, asylum or refugee status, and diversity visa (DV) lottery. However, it’s essential to understand that the H-2A program is temporary in nature. Consult with your immigration attorney for guidance.

Can H-2A visa holders apply for other non-immigrant visas while in the U.S.?

H-2A visa holders may be able to apply for other non-immigrant visas while they are in the United States, but there are specific considerations and limitations to be aware of. Consult with your immigration attorney for guidance.

Can H-2A visa holders apply for U.S. citizenship (naturalization)?

H-2A visa holders can apply for U.S. citizenship (naturalization) if they meet the eligibility requirements, including maintaining continuous residence in the U.S. and meeting the physical presence requirements over time.

H-2A visa holders generally cannot apply for U.S. citizenship (naturalization) directly based on their H-2A visa status. To become a U.S. citizen, individuals typically need to meet specific eligibility criteria and follow a process that usually begins with becoming a lawful permanent resident (green card holder). H-2A visas are temporary, non-immigrant visas issued to foreign agricultural workers for seasonal or temporary agricultural employment. Consult with your immigration attorney for guidance.

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