By: Maria Jaramillo
Law Clerk
Bolour/Carl Immigration Group
U.S. employers can bring foreign nationals to the U.S. to fill temporary agricultural jobs through the H-2A program. Employers who (1) offer a temporary or seasonal job, (2) demonstrate a lack of able, willing, qualified, or available U.S. workers to do the job, (3) show that their employment of foreigners will not adversely affect similarly-employed U.S. citizens, and (4) submit a valid temporary labor certification from the U.S. Department of Labor qualify for the program.
Once USCIS has approved an employer’s petition, prospective workers from countries approved by the Department of Homeland Security may apply for an H-2A visa and/or admission. El Salvador, Guatemala, and Mexico are among some of the eligible countries.
Period of Stay
Typically, the period of stay in an H-2A classification depends on the period of time authorized by the temporary labor certification. A period of stay may be extended by up to one-year increments, with the maximum stay being three years. If a person has held the H-2A status for three years, they must remain outside of the U.S. for three, uninterrupted months before reapplying for a H-2A status.
Certain time spent outside of the U.S. may “interrupt” a worker’s stay and not count towards the three-year limit. For example, H-2 time is interrupted if a worker has held status for eighteen months but spent at least 45 days but less than three months outside of the U.S. Similarly, H-2 time is interrupted if a worker has held status for more than eighteen months but spent at least two months and less than three months outside of the U.S.
Family
H-2A employees’ spouses and unmarried children under the age of 21 may apply for an H-4 classification. However, family members in H-4 classification are not eligible for employment within the U.S.
Notifications to USCIS
Employers are required to notify USCIS of certain fee and employment-related information. Accordingly, an employer must notify USCIS if an H-2A worker has agreed to or paid a job placement fee or any other compensation as a condition of employment within two workdays of gaining such knowledge. Additionally, employers must notify USCIS within two workdays when an employee does not show up to work within five workdays of their start date, leaves without notice and fails to report for five consecutive workdays without the employer’s consent, is terminated before completion of the labor or service for which he or she was hired, or completes labor or services thirty days earlier than specified on the petition. Failure to notify USCIS may result in denial of an H-2A petition or a fee for non-compliance.
COVID-19 and H-2A
To lessen the impact of COVID-19, the Department of Homeland Security has issued a temporary final rule, which allows employers with a valid temporary labor certification to immediately employ foreigners in the U.S. with valid H-2A status after USCIS receives their petition, but no earlier than the specified employment start date. This temporary rule also extends the maximum period of stay beyond three years.