The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.
The Bracero Group’s specialists will prepare and file all the required documents for foreign agricultural workers and U.S. companies applying for the H-2A visa.
H-2A Visa Eligibility – It Is Suitable For:
Foreign agricultural workers with job offers from U.S. companies U.S. companies hiring foreign workers to perform agricultural labor or services of a farm.
H2A Visa Requirements
A. Criteria for Determining Employer’s Eligibility
1. The following general categories of individuals or organizations may petition for foreign workers under the H-2A visa:
a) An agricultural employer who anticipates a shortage of U.S. workers needed to perform agricultural labor or services of a temporary or seasonal nature.
b) The employer may be an individual proprietorship, a partnership or a corporation. An association of agricultural producers may file as a sole employer, a joint employer with its members, or as an agent of its members.
c) An authorized agent, whether an individual (e.g., an attorney) or an entity (e.g., an association), may file an application on behalf of an employer. Associations may file master applications on behalf of their members.
d) Work must consist of agricultural labor or services, such as planting, raising, cultivating, harvesting, or production of any agricultural or horticultural commodity.
e) Work must be full-time (35 hours or more a week).
f) Employer’s need for workers must be seasonal or temporary in nature, such as a recurring growing cycle (generally lasting 10 months or less).
a) Recruitment Report Sample
See agriculture employer compliance requirements here.
2. Wages: The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher. The Adverse Effect Wage Rate is established every year by the Department of Labor for every state except Alaska.
Annual changes are normally announced in December of each year, for the following year. Here is the most recent AEWR wage requirements by state.
a) Employer must offer, advertise in recruitment, and pay workers the highest of the following:
1. Adverse Effect Wage Rate (AEWR)
2. Prevailing Hourly Wage or Piece Rate
3. Collective Bargaining Wage
4. Federal or State Minimum Wage
3. Housing: The employer must provide free housing to all workers who are not reasonably able to return to their residences the same day. Such housing must be inspected and approved according to appropriate standards. Generally, housing provided must meet the full set of standards established by DOL’s Occupational Safety and Health Administration (OSHA). Rental housing which meets local or state health and safety standards also may be provided.
4. Meals: The employer must provide either three meals a day to each worker or furnish free and convenient cooking and kitchen facilities for workers to prepare their own meals. If meals are provided, then the employer may charge each worker a certain amount per day for the three meals.
5. Transportation: After a worker has completed 50 per cent of the work contract period, the employer must reimburse the cost of transportation and subsistence from the place of recruitment to the place of work if such costs were borne by the worker.
a) The employer must provide free transportation between the employer’s housing and the work site for any worker who is provided housing
b) Upon completion of the contract, the employer must pay economic costs of a worker’s subsistence and return transportation to the place of recruitment. Special conditions apply when the worker will not be returning to the place of recruitment because of another job
c) If the employer must advance transportation costs to foreign workers or provide transportation, the employer must advance such costs or provide transportation to U.S. workers as well. In addition, if it is prevailing practice in the occupation to provide transportation, the employer must provide transportation to the U.S. worker as well.
6. Workers’ Compensation Insurance: The employer must provide Workers’ Compensation or equivalent insurance for all workers. Proof of insurance is required when petitioning for workers.
7. Tools and Supplies: The employer must furnish at no cost to the seasonal agricultural workers all tools and supplies necessary to carry out the work, unless it is common practice for the workers to provide certain items.
8. Three-fourths Guarantee: The employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the work contract period and any extensions.
9. Fifty per cent rule: The employer must employ any qualified U.S. worker who applies for a job until 50 per cent of the contract period has elapsed.
10. Labor Dispute: The employer must assure that the job opportunity for which the employer is requesting H2A certification is not vacant due to a strike or lockout.
11. Certification Fees: A fee will be charged to an employer granted temporary alien agricultural labor certification. Certification fees vary by agency.
12. Worker’s Payments:
i. The employer must keep accurate records with respect to a worker’s hours worked and earnings.
ii. The worker must be provided with a complete statement of hours worked and related earnings on each payday.
iii. The employer must pay the worker at least twice monthly or more frequently if it is the prevailing practice.
iv. A copy of the work contract must be provided by the employer to each worker (in the worker’s primary language) and signed by each worker, at the beginning of the work contract.
The Bracero Group has ‘template worker’ contracts that we can tailor to your specific needs and conditions. Be sure to ask us for assistance.
For a complete list of Employer Responsibilities, Assurances and Obligations, click here.
Note: Many of the benefits that must be included in a job offer and other conditions that must be satisfied will be dependent upon what prevailing practices exist in the same occupation, crop and area. Employers are advised to make an independent determination of factors such as prevailing wages and employer practices before filing an application.
Workers cannot apply for a H2A visa as an individual. A U.S. employer must sponsor a worker for a H2A visa
Applying for Temporary Labor Certification & Filing the H2A Petition.
The certification is designed to ensure that the admission of foreigners to work in this country on a temporary basis will not adversely affect the job opportunities, wages, or working conditions of U.S. workers.
The Bracero Group are specialists in filing for a U.S. employer the necessary paperwork for State and Federal petitions to obtain the workers necessary to meet your labor needs.
If an employer has an emergent or expedited need, The Bracero Group can file an ‘expedited’ petition in behalf of the employer, asking that the ‘set’ time period for filing be waived, provided that substantive information be provided. (If an employer has an expedited need, they need to let us know immediately. Additional fees may apply).
The H-2A labor certification application shall be valid for the period of employment indicated on the application for Alien Labor Certification.
However, in no event shall the validity period exceed 364 days. A worker may stay for two more years with two one-year increments. With initial one year and two one-year extensions, you may stay for three years on H-2A visa.
The Bracero Group will expertly work with the employer to determine their labor needs and length of contract that will best meet their needs.
1. The job must be temporary in nature and the need should be for one year or less. The employer’s need cannot be ongoing or continuous.
2. The employer has the burden of establishing the facts necessary to support a finding that the need is seasonal or temporary.
3. H-2A time counts whether the worker is in the U.S. or abroad.
4. H-2A dependents may not work in the U.S.
The Bracero Group can assist employers in filing the requisite paperwork to ensure legal petitions are filed and awarded.
Note: H-2A certification is issued to the employer, not the worker, is not transferable from one employer to another or from one worker to another. Certification is issued only for a specific job opportunity, for a specific number of workers, and for a specific employment period.
Can a worker’s dependents work on a H-4 visa?
No, a worker’s dependents may not work on a dependent status unless they have requisite Work Visa. Each dependent will have to apply for the appropriate Work Visa. Pursuance of Work Visa’s are the sole responsibility and fiscal responsibility of the worker and his dependents. >br>
Can a worker’s dependents study on a H-4 visa?
Yes, a worker’s dependents may study on H-4 visa, and they do not have to apply for a separate Student Visa.
As an employer, you will need to follow through on all the requirements specified in your contract with The Bracero Group to ensure timely approval status.
Assuming no ‘notice of deficiency’ (NOD) in the application process, delay by the employer in meeting payment requirements, or responses required to fulfill petition requirements or NOD’s, and/or other delays beyond the control of The Bracero Group or the employer, the entire process for approval can take up to 120 days with 75 – 90 days being the average.
It is very important that when you are notified by The Bracero Group of needing additional information, filing and/or paying a fee, etc. that you respond within 24 hours.
An employer’s failure to respond in a timely fashion to the Bracero Group’s requests or inquiries may force a delay in worker’s arrival outside the original ‘petition’ start dates. Delays caused by the employer or delays outside the control of the employer or The Bracero Group, renders The Bracero Group, as not responsible for said delays.
What forms are to be submitted by H-2A employer?
The Bracero Group will take full responsibility of filing all State and Federal applications necessary to ensure timely issuance of H2A Visas.
In general, the following processing times should be followed to secure your workers:
- If you need workers by March 1, we need to file your application no later than December 15.
- If you need workers by March 15, we need to file your application no later than January 1.
- If you need workers by April 1, we need to file your application no later than January 15.
- If you need workers by April 15, we need to file your application no later than February 1.
- If you need workers by May 1, we need to file your application no later than February 15.
- If you need workers by May 15, we need to file your application no later than March 1.
- If you need workers by June 1, we need to file your application no later than March 15.
- If you need workers by June 15, we need to file your application no later than April 1.
We cannot accept faxed documents
We must have originals signed in ink!
1. Inform the employer and the SWA of specific efforts expected of them regarding recruitment of U.S. workers
2. Require that the job order be placed into appropriate intrastate and interstate clearances, and
3. Require the employer to engage in independent positive recruitment efforts within a multi-state region of traditional or expected labor supply if the regional administrator (RA) determines there is an enough supply of labor to be recruited.
How will an employer know if their H-2A visa application is not considered?
If an employer’s application is not accepted, then the regional administrator will notify the employer in writing within seven days after receipt of the application. The regional administrator’s notice of nonacceptance will:
- State why the employer’s application is not acceptable
- State changes necessary for the application to be accepted for consideration
- Allow the employer five calendar days to resubmit the application
- Outline procedures employer may use to appeal the RA’s nonacceptance.
Can an employer re-submit the amended application for H-2A visa?
Yes, an employer may resubmit the H-2A visa application with modifications. In such instances, the employer should file the amended application within five days of the regional administrator’s notice of nonacceptance. The amended application must be filed with the regional administrator (with a copy to the SWA).
Under what circumstances can an employer’s H-2A visa application be denied?
An employer’s H-2A visa application may be denied when:
- The application did not meet the required time frames (except in emergency situations) and there is not enough time to test the availability of U.S. workers.
- Enough able, willing, and qualified eligible U.S. workers are available to fill all the employer’s job opportunities.
- The employer has not complied with the worker’s compensation requirements.
- The employer has not satisfactorily complied with positive recruitment requirements.
- The employer, since the application was accepted for consideration, has adversely affected the wages, working conditions, or benefits of U.S. workers.
- After appropriate notice and opportunity for a hearing, the regional administrator determines that the employer has substantially violated a material term or condition of a previous H-2A certification within the last two years.
Sample itemized costs per petition or worker in some circumstances can be found here.