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Employment law

H-2A agricultural visa

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 Texas, as in other states, the H-2A visa program is governed by federal law, specifically the Immigration and Nationality Act and the regulations issued by the United States Citizenship and Immigration Services (USCIS). Employers in Texas can use the H-2A program to hire foreign nationals for temporary agricultural work when there is a shortage of domestic workers. To participate, Texas employers must file Form I-129 and prove the job is temporary or seasonal, that there are insufficient available and qualified U.S. workers, and that hiring H-2A workers will not negatively impact the wages and conditions of U.S. workers in similar roles. They must also submit a valid temporary labor certification from the U.S. Department of Labor, except in emergent circumstances. H-2A visas can be granted for the period authorized on the labor certification and may be extended in increments of up to one year, with a maximum stay of three years. After three years, the worker must leave the U.S. for at least three months before they can apply for H-2A status again. Time spent in other H or L nonimmigrant statuses is counted towards the three-year limit.

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