A Guide to the H-2A Agricultural Visa Program

H-2A Agriculture Visa

The H-2A temporary agricultural program allows farmers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform agricultural labor or services of a temporary or seasonal nature. Employers must file a petition with US Citizenship and Immigration Services.

Generally, compensation paid to an H-2A worker is not subject to federal income tax. However, compensation may be subject to local income tax in some instances.

What is an H-2A visa?

The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform agricultural labor or services of a temporary or seasonal nature. Unlike other temporary work visa categories, there is no cap on the number of people who may be granted H-2A status.

The program requires that the employer provide evidence that there are not enough U.S. workers who are “able, willing, qualified and available to do the work,” and that the employment of foreign workers will not adversely affect wages and working conditions of comparable U.S. employees. Employers must also pay workers the adverse effect wage rate (AEWR), or a higher amount if specified in a labor contract or agreed-upon collective bargaining agreement.

In addition, H-2A employees must be paid the prevailing wage or a higher amount, as determined by DOL. Wages may be subject to income tax in accordance with applicable U.S. law and relevant income tax treaties.

Who can apply for an H-2A visa?

The H-2A temporary agricultural workers program allows farmers with enough demand for seasonal or temporary workers to bring nonimmigrant foreign nationals to the United States to perform agricultural labor. The program also establishes a process to determine the prevailing wage for these workers.

Employers can request H-2A workers through a temporary labor certification application with the local State Workforce Agency. The applications are generally filed 60 to 75 days before the farmer anticipates a need for the workers. The applications are then reviewed by the Department of Labor’s Chicago National Processing Center.

The Department of Labor’s final rule strengthens worker protections, enhances enforcement to prevent fraud and abuse, and simplifies and modernizes the H-2A visa application, Temporary Labor Certification, and prevailing wage determination processes. The final rule also provides additional flexibility for agricultural employers to use the H-2A program by adjusting the total number of H-2A workers per farm and by changing the duration of their employment.

What are the requirements for an H-2A visa?

The H-2A visa program allows U.S. agricultural employers who anticipate a shortage of domestic workers to bring foreign guest workers to fill seasonal farm jobs. The farmers must meet specific regulatory requirements before hiring the workers.

Employers must file a temporary labor certification with the state workforce agency 60 to 75 days before they need the H-2A workers. They must demonstrate that the employment of the H-2A workers will not adversely affect the wages and working conditions of local domestic workers.

The employers must also submit a Form ETA-790 to the Department of Labor’s Chicago National Processing Center to apply for the H-2A visa petition. The workers should wait for the final determination by the Department of Labor’s Chicago National Processing center before they travel to the US for their work. The employers must follow the special withholding rules for nonresident aliens for payments to H-2A workers. The withholding rules are published in Chapter 9 of Publication 15 (Circular E) Employer’s Tax Guide and Notice 1392, Supplemental Form W-4 Instructions for Nonresident Aliens.

How do I apply for an H-2A visa?

H-2A permits agricultural employers to hire foreign nonimmigrant workers to perform temporary services or labor. The employer must demonstrate that there are not enough U.S. workers who are able, willing, qualified, or available to do the work; that the job is temporary or seasonal in nature; and that bringing in H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Employers must submit a temporary labor certification to the Department of Labor (ETA-790 or ETA-9142A) and an H-2A petition to USCIS at least 45 days before they need the foreign workers. The petition must include an employer statement describing the specific project, job duties, working conditions, wage rates, benefits, and other terms of employment.

The legal team at Farmer Law can help employers navigate the complex H-2A visa application process and ensure federal compliance. We can also help employers develop plans and policies to protect the rights of their workers and avoid costly fines for labor violations.

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