The H-2A visa program allows a U.S. employer or agent to bring foreign nationals to the United States for temporary or seasonal agricultural jobs. The foreign national must have a standing offer of employment to qualify for an H-2A visa, and their prospective employer must meet certain regulatory requirements. If all legal requirements are met, the employer may petition the U.S. government to initiate the H-2Aprocess for the foreign national worker.

To qualify for H-2A nonimmigrant classification, an employer must:

• Offer a job that is temporary or seasonal in nature.
• Show that there are not enough U.S. workers able, willing, qualified, or available to do the temporary work.
• Demonstrate that employing the H-2A worker will not negatively impact the wages and working conditions of similarly-employed U.S. workers.
• Prove that the visa holder intends to return to their home country after the visa expiration date.
• Submit a valid temporary labor certification from the U.S. Department of Labor.

A worker with an H-2A visa may be granted a stay for up to the period of time authorized on the temporary labor certification submitted by their employer to the U.S. government. H-2A classification stays may be extended in increments of up to 1 year. The maximum period an H-2A classification stay permission is 3 years.

Whenever possible, BAL helps keep families together by assisting employees’ spouses and minor children to qualify for H-4 visas. Additionally, qualifying spouses and dependents of an H-2A worker may be allowed to enter the United States during the duration of their spouse’s H-2A visa, and the worker is given the unrestricted permission to travel into and outside of the U.S. during their visa period as well. Family members of H-2A workers are ineligible for employment in the U.S. under this program but may be able to personally qualify for a work visa.

H-2A visa holders are entitled to protection under U.S. wage and labor laws, workers’ compensation benefits, transportation, and certain housing and education benefits for themselves and their family.

Wages for H-2B workers must be the highest of the adverse effect wage rate (AEWR), the applicable prevailing wage, the agreed-upon collective bargaining rate, or the Federal or State statutory minimum wage.

H-2A employers are required to guarantee a minimum number of work hours to H-2A workers and offer employment for at least three-fourths of the total workdays in the contract period. Workers have the right to report any violations without fear of retaliation and be represented by an attorney in matters related to their employment. Terms and conditions of employment must be provided in a written contract by the employer in a language the worker understands.

H-2A classifications may be extended in increments of up to 1 year each. The maximum extension permitted under the H-2A program is 3 years. With certain exceptions, after 3 years an H-2A worker must leave the U.S. for 3 consecutive months before seeking readmission.

Learn more about how BAL’s temporary workforce immigration experts can help your business.

An H-2B nonimmigrant visa allows a U.S. employer or U.S. agent to bring foreign nationals to the U.S. for temporary, non-agricultural jobs.

Many employers, such as seafood processors and the forestry industry, use the H-2B visa program to retain temporary, seasonal foreign national workers.

To qualify for H-2B nonimmigrant visa classification, an employer must:

• Show that there are not enough U.S. workers able, willing, qualified, or available to do the temporary, non-agricultural work.
• Demonstrate that employing the H-2B worker will not negatively impact the wages and working conditions of similarly-employed U.S. workers.
• Show that the need for labor is temporary in duration. Work placement and temporary agencies are not eligible for the H-2B visa program.
• Submit a valid temporary labor certification from the U.S. Department of Labor.

In order to demonstrate an H-2B program temporary need for labor, an employer must show that the labor is:

• A one-time occurrence: An employment situation that is usually permanent has created the need for a temporary worker, the employer has not employed workers for the services or labor in the past, and the employer will not need to hire workers to perform the services or labor in the future.
• Seasonal: The employer’s need for services or labor is tied to a season of the year by an event or pattern, and is of a recurring nature.
• Peak load: The employer routinely employs permanent workers to perform the services or labor, needs to supplement its permanent staff due to a seasonal or short-term demand, and the temporary staff additions will not become part of the employer’s regular operation.
• Intermittent: The employer has not hired permanent or full-time workers to perform the services or labor, and occasionally or intermittently needs workers for short periods.

The H-2B visa is a nonimmigrant visa that does not directly lead to a green card, but H-2B visa holders can apply for an adjustment of status through employment-based preference categories.

The steps for employers when sponsoring a foreign worker for permanent residence generally include filing a prevailing wage determination with the U.S. Department of Labor, submitting an application for permanent labor certification (PERM), filing a Form I-140 with U.S. Citizenship and Immigration Services.

BAL is available to help companies navigate the green card process for H-2 and other eligible workers.

Learn more about how BAL’s temporary workforce immigration experts can help your business.