The H-2A visa 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 federal regulations, or an association of U.S. agricultural producers named as a joint employer must file Form I-129, Petition for a Nonimmigrant Worker, on a prospective worker’s behalf. And only persons (nationals) from certain countries are eligible to participate in the H-2A program.

To qualify for H-2A nonimmigrant classification, the petitioner (employer) must:

• Offer a job that is of a temporary or seasonal nature.

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

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

• Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition. A limited exception to this requirement exists in certain “emergent circumstances.” (See 8 CFR 214.2(h)(5)(x) for specific details).

Generally, U.S. Citizenship and Immigration Services (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. And previous time spent in other H or L classifications counts toward total H-2A time.

In South Dakota, as in all U.S. states, the H-2A visa program is governed by federal regulations and is designed to allow U.S. employers to bring foreign nationals to the United States for temporary agricultural work. Employers in South Dakota must file Form I-129 on behalf of the prospective worker and meet several requirements: the job must be temporary or seasonal, there must be a shortage of U.S. workers who are able, willing, qualified, and available, the employment of H-2A workers must not negatively affect the wages and working conditions of U.S. workers, and a valid temporary labor certification from the U.S. Department of Labor is generally required, except in emergent circumstances. H-2A classification can be granted for the period authorized on the labor certification and may be extended in increments of up to 1 year. The maximum period of stay is 3 years, after which the worker must leave the U.S. for 3 months before they can apply for readmission under the H-2A program. Time spent in other H or L nonimmigrant classifications is counted towards the 3-year limit.