inner page header image

H2A Visa and H2A Program For Seasonal Agricultural Workers

The H2A visa is an effective means of ensuring that your labor needs are met and that your product reaches the market in a timely manner, thereby ensuring you maximize your agricultural business’ profitability. Seasonal agricultural workers have for decades been a resource for thousands of farms and other agriculture related businesses across the United States. This is because the U.S. is the breadbasket to the world and wants to continue to play this role for many years to come. Also, we want to ensure that we continue to be able to feed our population without needing to import food from other countries.

Hiring H2A Workers

H2A workers can come from Mexico or dozens of other countries in a relatively short time, as quickly as two months from the time that you begin the processing of your H2A visa program application. This means that the H2A program can be a great resource for meeting your labor needs and provide the heavy lifting needed at peak times of the year. It gives you the ability to pick your crops, among many other jobs that seasonal agricultural workers could do. You will thus be able to thrive despite any potential shortage in your local labor market.

Number of H2A Visas you can Apply For

The H2A visa can bring as many H2A workers to agricultural businesses as they need because there is no annual limit on the number of visas that the Department of State will issue under the H2A program. This means that you can obtain as many seasonal agricultural workers as your business needs.

The H2A visa is thus a spectacular option if you are struggling to keep up with your labor demands. If you are in need of workers, you need not worry that their application may be denied because the visas have simply run out for the year, which is the case for most other visa categories.

Who can Apply for H2A Visas?

Any agricultural business can apply for H2A visas. The “C.F.R.” or Code of Federal Regulations section 655.103(c) makes it clear that an agricultural business includes all types of farming, raising of livestock, forestry and lumbering. It also includes all businesses which support these activities directly such as the preparation or delivery of their products to market and the storage of agricultural products. Agricultural labor is defined as the “handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or market or to a carrier for transportation to marketing, in its unmanufactured state”, where more than half of the product is from the agricultural provider.

What is a Seasonal Agricultural Position?

Most of these positions will be directly linked to the agricultural seasonal cycle, such as harvest season, for when more workers are needed to harvest a particular crop. This is a time during which “labor levels far above those necessary for ongoing operations” are required to get the product through one or more important stages toward its reaching the market. The key issue in determining whether the position is seasonal or not is whether the employer’s need is seasonal. The job description of the employee should not be the determining factor. In a 2013 case, “Vermillion Ranch Limited Partnership” the government approved a winter cattle herder position because it was based upon a particular seasonal need of the cattle rancher.

What Process is Involved in Petitioning for H2A Workers?

The employer must first determine what wage to offer for these positions. This wage must be consistent with the typical amount paid to similarly situated U.S. workers. In other words, an employer cannot pay less simply because these are foreign workers. Next the employer will draft a job offer—this must be done between 60 and 75 days before the date of hiring. The business will then, through its attorneys, submit ETA Form 9142 with the Department of Labor and obtain certification. The employer must then show that they will provide housing for the H2A workers if it is the prevailing practice to do so in the industry. The employer will place two newspaper ads on two separate dates and will interview for the position, contacting all U.S. workers as well as former U.S. workers who worked the previous year. If the employer shows successfully that no U.S. worker is available for the position or insufficient numbers of workers are available, it will then be able to file an I-129 petition with the immigration service to request it be formally approved as an H2A visa employer-petitioner. The final step involves petitioning workers from any of the 79 countries approved by the Department of Homeland Security as eligible for H2A visa processing through the local embassy or consulate in the workers’ home country.

If you have any additional questions about how the process works, contact us for a Free 30 Minute Consultation


CTA Free Consultation

Practice Areas