Working in the United States
H-2A Temporary Agricultural Workers
The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs. A U.S. employer,a U.S. agent as described in the regulations,or an association of U.S. agricultural producers named as a joint employer must file Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf.
Except as noted below, H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A program.
The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries annually in a Federal Register notice. Designation of eligible countries is valid for one year from publication.
Effective Jan. 18, 2013, nationals from the following countries are eligible to participate in the H-2A program:
A national from a country not on the list may only be the beneficiary of an approved H-2A petition if the Secretary of Homeland Security determines that it is in the U.S. interest for him or her to be the beneficiary of such a petition. (See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(5)(i)(F)(1)(ii) for additional evidentiary requirements.)
Note: If you request H-2A workers from both eligible and non-eligible countries, USCIS suggests that you file two separate petitions. Filing one petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help decrease delays.
Generally, USCIS may grant H-2A classification for up to the period of time authorized on the temporary labor certification. H-2A classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A classification is 3 years.
A person who has held H-2A nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2A time.
Exception: Certain periods of time spent outside of the United States may “interrupt” an H-2A worker’s authorized stay and not count toward the 3-year limit. See Calculating Interrupted Stay for H-2 Classifications for additional information.
An H-2A worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.
Petitioners of H-2A workers must notify USCIS within 2 workdays if any of the following occur:
Petitioners must include the following information on the employment-related notification:
Additionally, to assist USCIS with identification of the H-2A worker, submit the following for each H-2A worker, if available:
Failure to Notify USCIS: A petitioner who fails to comply with these employment notification requirements, or fails to demonstrate good cause for untimely notification, may be required to pay $10 in liquidated damages for each instance of noncompliance.
Note: USCIS defers to DOL’s definition of “workday.” According to the Fair Labor Standards Act (FLSA), this generally means the period of time on any particular day when an employee begins and ends his or her “principal activities.”
How do I notify USCIS?
Notification should be made via email or mail to the California Service Center at the following addresses. Although not required, email notification is strongly recommended to ensure timely notification.
California Service Center
A petitioner, agent, facilitator, recruiter, or similar employment service is prohibited from collecting a job placement fee or other compensation (either direct or indirect) at any time from an H-2A worker as a condition of employment.
Petitioners are provided with the opportunity to avoid denial or revocation (on notice) of their H-2A petition if they notify USCIS that they obtained information concerning the beneficiary’s payment (or agreement to pay) a prohibited fee or compensation to any agent, facilitator, recruiter, or similar employment service only after they filed their H-2A petition. This narrow exception does not apply, however, where a petitioner knew or should have known at the time of filing of its H-2A petition that the prospective worker had paid (or agreed to pay) such recruitment-related fees to any such persons or entities.
Petitioners must notify USCIS of an H-2A worker’s payment or agreement to pay prohibited fees to a recruiter, facilitator or similar employment service within 2 workdays of gaining knowledge of such payment or agreement.
Petitioners must include the following information in their fee-related notification:
Fees not prohibited are:
How do I notify USCIS?
Notification should be made to the California Service Center via email or mail at the following addresses. Although not required, email notification is strongly recommended to ensure timely notification. (OMB Control Number 1615-0107)
California Service Center
Find this page at: http://www.uscis.gov/h-2a
Last Reviewed/Updated: 01/23/2013