| H-2A Temporary Agricultural Workers
Alleged labor shortages in the United States have long resulted
in various measures to facilitate the importation of temporary
workers, the majority of whom are farmworkers. The hiring
of such workers has always been controversial. The goals of
the H-2A program are the same as for the H-2 program overall:
to try to find domestic workers if possible, and, if not,
to make sure foreign workers do not adversely affect the wages
and working conditions of similarly employed U.S. workers.
One unique aspect of the H-2A process is that the employer
must guarantee many employee benefits, including housing,
food, tools, and return transportation.
Applications must be filed with three agencies:
- a temporary labor certification application with the DOL;
- a temporary worker petition with the INS; and
- an individual visa application at a State Department consulate
overseas by the named visa beneficiary.
The H-2A provision of the Immigration and Nationality Act (INA)
allows foreign farmworkers to be admitted to the United States
as nonimmigrants to perform agricultural labor of a temporary
or seasonal nature. To bring in foreign farmworkers under the
H-2A program, a petitioner must prove that (1) ''there are not
sufficient [U.S.] workers who are able, willing and qualified,
and who will be available at the time and place needed, to perform
the [agricultural] labor or services involved in the petition,''
and (2) there will be no adverse effect ''on the wages and working
conditions of workers in the United States similarly employed.''
Labor Department regulations require an employer to furnish
an H-2A worker on or before each payday a written statement
of the person's total earnings and whether the pay is at an
hourly or piece rate. The statement must also list the hours
offered, the hours actually worked, and an itemization of
all deductions made. Violation of these reporting requirements
can result in sanctions being imposed on the employer, including
the denial of future labor certification privileges.
A foreign farmworker can normally be admitted on an H-2A
visa for up to a year. An extension must be granted for any
stay beyond that.
Spouses and children of H-2A nonimmigrants are admitted
in H-4 status. They may not accept employment in the United
States unless they are eligible independently for employment
authorization.
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