What is an H-2A visa and how do I apply for it?

In this week's Consulta Migratoria® column I answer a question from a reader who wants to work temporarily in the United States.

Each case is different and the answers vary depending on each person's immigration history.

Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.

I am Salvadoran and work as a farmer in El Salvador. A company here has offered to help me apply for an H-2A visa to work as a farmer in the United States and they propose to charge me to get the job.

What are the requirements and how do I apply for one of these visas? Can my wife and eight-year-old son accompany me on my trip? -Joshua T.

Joshua, U.S. immigration law does not permit at any time a petitioner, agent, facilitator, recruiter or similar employment agency/service to charge a job placement fee or other compensation (whether direct or indirect) to an H-2A worker as a condition of employment.

I recommend that you take advantage of the Labor Migration Program of the Ministry of Labor and Social Security of El Salvador. The program seeks to create employment opportunities for Salvadorans abroad and protect their labor rights. It also provides free assistance in the process of identifying and applying for jobs under the H-2A visa program.

Your spouse and child may accompany you on your trip to the United States as long as you obtain the necessary visas to travel to the country.

Below is more information about the H-2A visa program.

Eligibility for an H-2A visa

The H-2A visa program allows U.S. employers, agents or associations of U.S. agricultural producers to bring foreign nationals to the United States for temporary agricultural employment.

In fiscal year 2018, the U.S. Department of State issued 196,409 H-2A visas and only 145 of these visas were given to Salvadorans. In contrast, Mexicans received 180,420 H-2A visas in fiscal year 2018..

In order for an employer to obtain workers under the H-2A program, it must:

• Offer work of a temporary or seasonal nature. The work period generally lasts less than 12 months.

• Demonstrate that there are not enough able, willing, qualified and available U.S. workers to do the temporary work.

• Show that potential foreign workers are nationals of a country eligible for the H-2A visa. 

• Demonstrate that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers

• Present a valid temporary labor certification from the U.S. Department of Labor. There is a limited exception to this requirement in certain "emergent circumstances".

What is the process for applying for an H-2A visa?

Only employers, agents or associations of U.S. agricultural producers may file petitions to bring foreign nationals to the United States for temporary agricultural employment.

The regular process for filing petitions to hire H-2A workers takes approximately 75 days and includes the following steps:

• The petitioner applies for a domestic work order with the local State Workforce Agency to attempt to recruit U.S. workers who are able, willing, qualified and available to do temporary work.

• If the petitioner cannot find workers, he or she proceeds to apply for a temporary labor certification with the U.S. Department of Labor's National Processing Center in Chicago.

• If the National Processing Center grants a labor certification, the petitioner files Form I-129, Petition for a Nonimmigrant Worker, with the U.S. Citizenship and Immigration Services (USCIS).

• If USCIS approves the petition, the worker applies for the H-2A visa with the U.S. Department of State and is interviewed by a consular officer.

• Approved workers travel to the work site with their H-2A visas and if admitted by a U.S. Customs officer, proceed to work for the petitioner for the period listed on the labor certification.

How long can I stay in the United States on an H-2A visa?

USCIS and the Department of State generally grant the H-2A visa for the period of time authorized in the temporary labor certification. The H-2A visa may be extended for qualifying employment in increments of up to one year each.

A new valid temporary labor certification covering the time requested must accompany each extension request. The maximum period of stay on the H-2A visa is three years.

A person who has maintained H-2A nonimmigrant status for a total of three years must depart and remain outside the United States for an uninterrupted period of three months before applying for readmission as an H-2A nonimmigrant.

If the foreign worker has worked in the United States under other H or L visa classifications, this work counts toward the H-2A time total. There are exceptions.

What visas are granted for immediate relatives of H-2A workers?

If an employee is approved for an H-2A visa, immigration law allows him to bring his immediate family to the United States when he enters the country to work.

Only spouses and unmarried children under the age of 21 may accompany workers on H-2A visas, and to do so, they must apply for an H-4 visa.

H-4 visa holders are not eligible to work in the United States, but may study and live legally in the country.

Rights of temporary agricultural workers with H-2A visas

Unfortunately, there have been cases of unscrupulous U.S. employers taking advantage of farmworkers, abusing or mistreating them.

It is important to know that seasonal agricultural workers have certain rights if they are mistreated by a U.S. employer.

If you are a victim of mistreatment, fraud or labor exploitation, you can file a complaint and receive assistance The U.S. Department of Labor's Wage and Hour Section can be reached at 1-866-487-9243.

Consult with an immigration attorney before beginning any immigration proceedings.

For more information and immigration tips, visit my website at Immigration Today. 

Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions.

Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a former President of the Hispanic National Bar Association and the Westlake South Los Angeles Neighborhood Council. For information on how to consult with Dr. Castillo, click here. click here.

The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. This column may be considered an advertisement under the Rules of Professional Conduct for attorneys in several states, including California and New York. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.