Understanding H2-A Visas
An H2-A visa is a legal document that allows a foreign national to enter and remain in the United States to do temporary or seasonal agricultural work. The work a person does while on an H2A visa must be temporary or seasonal in nature, which means the work is to be performed only at certain specified seasons during the year.
Basic Provisions & Requirements
The H2-A visa program is temporary and lets an agricultural employer bring in nonimmigrant workers in the event of a shortage of domestic workers who are willing and able to perform the jobs available. According to statistical information from the United States Citizenship and Immigration Services (USCIS), there are approximately 30,000 foreign nonimmigrants currently in the United States to do temporary agricultural work.
Basic Process of Recruitment and Employment
Employers who think they will not have enough domestic workers for an upcoming season, must apply for certification from the US Department of Labor at least 45 days before the need for workers. Active employee recruitment is necessary before the employer can apply for H2-A certification. Before the United States Citizenship and Immigration Services can give approval for any employer’s petition, it must be proven there are no domestic workers available, qualified and willing to do the job. To prove this, the employer must first exhaust all efforts to find and hire eligible domestic workers, which may include advertising in the newspaper and on the radio. Once a certification is obtained, it is validated for up to 364 days, depending on the employer’s need.
In addition, the Department of Labor must also certify that employing foreign nonimmigrant laborers will not negatively affect the wages and working conditions of similarly employed American workers. This means that workers must be guaranteed certain wages and living conditions. In employing a nonimmigrant agricultural worker, the employer must also provide a guarantee to offer each worker a job for at least three-fourths of the workdays within the term of the contracts period. If the employer does not meet the requirement of three-fourths within the contract period, wages must still be paid in the amount they would have earned had they worked for the entire contract period.
How Are Wages Paid?
Nonimmigrant agricultural workers must be paid the same wage as U.S. workers. The hourly rate of pay must be at least as high as the Adverse Effect Wage Rate, prevailing hourly wage rate, or federal/state minimum wage, whichever is greater. If a worker is to be paid on a piece rate basis, they must be paid the prevailing piecework wage as determined by the State Workers Association.
Hiring Nonimmigrant Workers
Each recruitment effort by the employer must be considered by the Department of Labor and USCIS to ensure that it is done in a manner substantially similar to same or similar employers in the surrounding region. Therefore, there must be an active recruitment effort by the employer before hiring nonimmigrant workers. This could including placing newspaper advertisements or radio advertisements as directed by the local state labor department. Such types of recruitment will be similar as what was conducted by non-H2-A agricultural employers in the same area or with the same type of crops. Active recruitment efforts must commence for a period of 15 days.
In addition to the specific manner in which recruitment is conducted, the nature of the recruitment is also monitored. In establishing the qualifications of workers and/or job parameters, the employer must identify only those skills and qualifications that are vital to performing the job and those that are normally necessary for other employers who do not hire foreign nonimmigrant workers.
Employee Housing & Meals
An employer must provide free housing for all workers holding an H2-A visa, who are unable to return to their home or residence the same day. Such housing needs to be inspected and approved according to standards outlined by the Department of Labor Occupational Safety Administration (OSHA). The employer must also supply three meals per day for each worker or must furnish free and convenient cooking and kitchen privileges, where employees can cook and prepare their own meals. If the employer chooses to provide meals for employees, then there is a right to charge each worker a certain amount per day for these meals.
Transportation for Workers
The employer can charge a transportation fee, but it must be no more than the cheapest transportation charges for the distance involved. An employer must provide free transportation for the worker between housing and the work location. Upon completing a work contract, the employer must pay for the costs of transportation back to the place of recruitment. Anything an employer does for a foreign worker must also be done for an American worker.