The H2A visa offers US farmers and agricultural producers a valuable way to anticipate employment gaps and bring in foreign nationals to fill temporary agricultural jobs. Compared to other visa options, the H-2A is relatively low in restrictions.
In this article, you will have a full guide on the restrictions of the H-2A visa program.
H2A Visa Restrictions – Requirements for US Petitioners
Prospective foreign workers may not self-petition for H-2A nonimmigrant status. The United States Citizenship and Immigration Services (USCIS) requires the petition to be filed by:
- A US employer
- A US agent (as described in the regulations), or
- An association of US agricultural producers
Before filing Form I-129 (Petition for Nonimmigrant Worker) with USCIS, petitioners must apply with the US Department of Labor (DOL) to obtain a temporary labor certification. In the certification process, the US DOL must determine that:
- There are not enough domestic workers who are able, willing, qualified, or available to perform the temporary and seasonal agricultural activities
- The employment of foreign workers will not negatively impact the wages and working conditions of domestic workers in similar conditions
When applying with the US DOL, petitioners must undergo a four-step labor certification process that requires them to:
- File a job order with the State Workforce Agency (SWA)
- File an H-2A application with the National Processing Center (NPC)
- Conduct the recruitment of domestic workers before requesting foreign labor
- Complete the temporary labor certification process
H2A Visa Restrictions – Eligible Countries
H2A visas are limited to nationals from specific countries designated by the Secretary of Homeland Security, with the concurrence of the Office of the Secretary of State. Every year, the Department of Homeland Security publishes the list of countries eligible for the H-2A program in a Federal Register notice.
The designation is valid for one year from the date of publication. Some countries may be added or removed from the list, depending on the decision of the Department of Homeland Security.
H2A Visa Restrictions – Taking a Closer Look
Despite the relative flexibility of the H-2A visa program, it has an extensive list of restrictions. H-2A visa holders are not considered lawful permanent residents and the classification does not provide a direct to a green card.
Considering the temporary or seasonal nature of the work, the H-2A visa may expire if the employment ends for any reason. For example, if the harvest season of a certain product ends abruptly due to weather conditions, the H-2A visa may expire and the workers may leave the country.
It is possible to renew the H-2A visa in increments of up to one year, resulting in a maximum period of stay of three years. Once the visa expires, workers must depart and remain outside the United States for three months before seeking readmission.
The H-2A visa permits workers to bring a spouse and unmarried children (under 21) into the United States. However, they must apply separately for the H-4 nonimmigrant classification.
Unless they personally qualify for a work visa, family members are not permitted to work during their stay in the United States under H-4 status. Consult with an experienced immigration attorney to understand the limitations and restrictions on the H-2A visa.