H-2A Visa

The H-2A visa is a nonimmigrant work visa that allows U.S. employers to hire foreign workers for temporary or seasonal agricultural work. It is specifically designed to address labor shortages in the agricultural sector when U.S. workers are unavailable.

Key Features of the H-2A Visa

  • Purpose:

    • To allow foreign workers to perform temporary or seasonal agricultural jobs in the United States.
    • Seasonal work is typically tied to predictable periods of planting, harvesting, or similar activities.

  • Temporary Nature:

    • The job must be temporary, lasting no longer than 1 year.

  • Employer Sponsorship:

    • The H-2A visa requires a U.S. employer to petition on behalf of the foreign worker.
    • Employers must demonstrate that no qualified U.S. workers are available for the job.

  • Labor Certification:

    • Employers must obtain a temporary labor certification from the U.S. Department of Labor (DOL) to verify the need for foreign labor.

  • Family of H-2A Workers:

    • The spouse and unmarried children under 21 of H-2A workers can apply for an H-4 visa, but they are not allowed to work in the U.S.

Eligibility Requirements

For the Employer:

  1. Temporary or Seasonal Job:

    • The job must qualify as temporary or seasonal in nature.
    • Seasonal work is tied to a particular time of year due to recurring events, such as crop harvesting.

  2. Effort to Hire U.S. Workers:

    • The employer must actively recruit U.S. workers and provide documentation showing there are no qualified U.S. workers available to fill the position.

  3. Wages and Working Conditions:

    • The employer must pay the prevailing wage for the job to ensure foreign workers do not undercut U.S. worker wages.
    • Housing and transportation must be provided for foreign workers.

For the Worker:

  1. Eligible Nationality:
    • The worker must be from a country on the H-2A eligible countries list (designated by the U.S. Department of Homeland Security). This list is updated annually.
  2. Job Offer:
    • The worker must have a valid job offer from a U.S. employer.

Application Process

Step 1: Employer Applies for Temporary Labor Certification

  • The employer files a Form ETA-9142A with the DOL to request a temporary labor certification.
  • The DOL reviews the application to ensure:
    • The job is temporary or seasonal.
    • The employer tried to recruit U.S. workers but was unsuccessful.
    • The wages meet prevailing wage requirements.

Step 2: Employer Files Form I-129

  • After receiving the labor certification, the employer files Form I-129 (Petition for a Nonimmigrant Worker) with U.S. Citizenship and Immigration Services (USCIS).

Step 3: Worker Applies for H-2A Visa

  • If the petition is approved and the worker is outside the U.S., they must apply for an H-2A visa at a U.S. consulate or embassy.
  • The worker needs:
    • A valid passport.
    • The approved Form I-129.
    • A visa application form (DS-160).
    • Proof of the job offer.

Step 4: Entry to the U.S.

  • Upon visa approval, the worker can enter the U.S. and begin employment.

Validity and Extensions

  • Initial Duration: The H-2A visa is typically valid for the duration of the labor certification, up to 1 year.
  • Extensions: Extensions can be granted in increments of up to 1 year, with a maximum total stay of 3 years.
  • After 3 years, workers must leave the U.S. for at least 3 months before applying for another H-2A visa.

Employer Obligations

  • Wages: Employers must pay at least the Adverse Effect Wage Rate (AEWR) or the prevailing wage.
  • Housing: Employers must provide free, safe, and hygienic housing for workers.
  • Transportation: Employers must reimburse transportation costs for workers to travel to and from their home country.

Benefits of the H-2A Visa

  • Addresses Labor Shortages:
    • Provides a legal way to fill temporary agricultural labor gaps.
  • Temporary Work Authorization:
    • Workers can perform agricultural jobs legally in the U.S.
  • Support for Families:
    • Family members can accompany the worker on an H-4 visa.

Limitations of the H-2A Visa

  • Restricted to Agricultural Work:
    • Only applies to temporary or seasonal agricultural jobs.
  • Employer Dependence:
    • Workers cannot switch employers without filing a new petition.
  • Country Restrictions:
    • Only workers from eligible countries can apply.
  • No Path to Permanent Residency:
    • The H-2A visa does not provide a direct path to a green card.

Eligible Countries

Workers must be from countries designated as H-2A eligible. Effective Nov. 8, 2024, nationals of the following countries are eligible to receive H-2A and H-2B visas:

AndorraEstoniaMadagascarSaint Lucia
ArgentinaThe Kingdom of EswatiniMaltaSan Marino
AustraliaFijiMauritiusSerbia
AustriaFinlandMexicoSingapore
BarbadosFranceMonacoSlovakia
BelgiumGermanyMongolia*Slovenia
BelizeGreeceMontenegroSolomon Islands
BoliviaGrenadaMozambiqueSouth Africa
Bosnia and HerzegovinaGuatemalaNauruSouth Korea
BrazilHaitiThe NetherlandsSpain
BruneiHondurasNew ZealandSt. Vincent and the Grenadines
BulgariaHungaryNicaraguaSweden
CanadaIcelandNorth MacedoniaSwitzerland
ChileIrelandNorwayTaiwan***
ColombiaIsraelPanamaThailand
Costa RicaItalyPapua New GuineaTimor-Leste
CroatiaJamaicaParaguay**Turkey
Republic of CyprusJapanPeruTuvalu
Czech RepublicKiribatiThe Philippines*Ukraine
DenmarkLatviaPolandUnited Kingdom
Dominican RepublicLiechtensteinPortugalUruguay
EcuadorLithuaniaRomaniaVanuatu
El SalvadorLuxembourg

*Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program.

**Paraguay is eligible to participate in the H-2A program but is not eligible to participate in the H-2B program.

***Regarding all references to “country” or “countries” in this document, it should be noted that the Taiwan Relations Act of 1979, Pub. L. No. 96-8, Section 4(b)(1), provides that “[w]henever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.” 22 U.S.C. § 3303(b)(1). Accordingly, all references to “country” or “countries” in the regulations governing whether nationals of a country are eligible for H-2 program participation, 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1), are read to include Taiwan. This is consistent with the United States’ one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.

This notice does not affect the status of H-2 beneficiaries who currently are in the United States unless they apply to extend their stay in H-2 status on the basis of a petition filed on or after the date of publication of the Federal Register notice. Similarly, this notice would not affect the eligibility of an H-2 beneficiary to apply for an H-2 visa and/or seek admission to the United States based on an H-2 petition approved before the date of publication of the Federal Register notice. It does apply to nonimmigrants changing status in the United States to H-2A or H-2B. Each country’s designation is valid from Nov. 8, 2024, until Nov. 7, 2025. 

H-2B vs. H-2A

FeatureH-2B VisaH-2A Visa
PurposeNon-agricultural temporary workAgricultural temporary work
Cap66,000 visas annuallyNo cap
IndustriesHospitality, landscaping, etc.Farming, harvesting, etc.
Housing RequirementNot mandatoryEmployer must provide free housing