H-2A Temporary Agricultural Workers

Alleged labor shortages in the United States have long resulted in various measures to facilitate the importation of temporary workers, the majority of whom are farmworkers. The hiring of such workers has always been controversial. The goals of the H-2A program are the same as for the H-2 program overall: to try to find domestic workers if possible, and, if not, to make sure foreign workers do not adversely affect the wages and working conditions of similarly employed U.S. workers. One unique aspect of the H-2A process is that the employer must guarantee many employee benefits, including housing, food, tools, and return transportation.

Applications must be filed with three agencies:

  • a temporary labor certification application with the DOL;
  • a temporary worker petition with the INS; and
  • an individual visa application at a State Department consulate overseas by the named visa beneficiary.

The H-2A provision of the Immigration and Nationality Act (INA) allows foreign farmworkers to be admitted to the United States as nonimmigrants to perform agricultural labor of a temporary or seasonal nature. To bring in foreign farmworkers under the H-2A program, a petitioner must prove that (1) ''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 [agricultural] labor or services involved in the petition,'' and (2) there will be no adverse effect ''on the wages and working conditions of workers in the United States similarly employed.''

Labor Department regulations require an employer to furnish an H-2A worker on or before each payday a written statement of the person's total earnings and whether the pay is at an hourly or piece rate. The statement must also list the hours offered, the hours actually worked, and an itemization of all deductions made. Violation of these reporting requirements can result in sanctions being imposed on the employer, including the denial of future labor certification privileges.

A foreign farmworker can normally be admitted on an H-2A visa for up to a year. An extension must be granted for any stay beyond that.

Spouses and children of H-2A nonimmigrants are admitted in H-4 status. They may not accept employment in the United States unless they are eligible independently for employment authorization.