There are a number of issues that can creep up when getting an H2A visa. Here are three of the most common challenges, and how you can resolve them.
1. Unexpected H2A Visa Delays
The most commonly encountered challenge when using the H2A guest worker program is not being able to get your workers to you in time for your crops to be picked or whatever agricultural job it is you need done that is time sensitive. This sounds absurd because the entire H2A guest worker program is based upon a “seasonal” need, so you would think the government would get its act together and process the visas on time, right?
Well, unfortunately, an H2A visa occasionally face unexpected delays through no fault of your own. The solution is often for your attorney to use the immigration bar association advocates to reach out to high-ranking immigration officials or even to file a complaint for an immediate injunction in federal court demanding an immediate response to the H-2A visa application that is pending. Almost always, when this occurs, the application is approved before the first day of court, because the immigration service does not want to get scolded by a federal judge (or be assessed fines and fees!).
2. Audits by Immigration and Customs Enforcement
As is true with all U.S. employers, but particularly with those utilizing the H2A guest worker programs, the business is subject to an audit by Immigration and Customs Enforcement (ICE). This is no reason to panic because if your immigration attorney has done her job, your documentation will be in proper order.
The most important thing to consider when managing your employees that have been brought under the H2A guest worker program is to be certain that they are working in the job and capacity that you represented to the government in the original application you planned for them to conduct. Also, all of your workers’ I-9 documents must be in proper order (for more information on the I-9, see https://www.uscis.gov/i-9), which serve to verify that the workers you are employing are in fact authorized to work in the U.S.
3. U.S. Workers Show Up for the Job
If you have decided to use the H2A guest worker program because you prefer foreign workers to U.S. workers, you need to realign your thinking somewhat. It is important to carefully conduct interviews for any U.S. workers that show up during the pre-H2A guest worker program hiring period because the government wants to ensure that its granting of H2A visas is not hurting any U.S. workers for the benefit of workers from abroad.
If U.S. workers do show up for interviews and are qualified to take the job, you need to hire them. But, this does not mean that you can’t continue with your H2A application and bring the majority of your workers to the U.S. for the remainder of the positions available. There is a middle ground here that can be followed that will allow you to be certain that your business needs are met and ensure you won’t face penalties for not following the law.
None of the advice contained in these materials serves as a substitute for individualized legal representation by a licensed attorney with experience in the practice area.