H-2A and H-2B Visas
The H-2 visa category is a temporary employment visa divided into two subparts: workers performing “agricultural labor or services of a temporary or seasonal nature (H-2A), and workers performing “other temporary service or labor” (H-2B).
H-2A Visas for Agricultural Workers
The H-2A is a temporary visa available to foreign nationals who want to enter the U.S. to perform temporary or seasonal agricultural labor services. To qualify for an H-2A, the work performed must last less than a year and the time period of the visa will be tied to the type and amount of work that needs to be done. For example, an H-2A could be valid for the duration of a harvest season, which would generally be for a two-to-three month period.
Before an applicant embarks on the H-2A process, a sponsoring employer must first apply for and receive a certification from the Department of Labor proving there are insufficient U.S. workers who are willing and able to complete the work within the necessary timeframe. When and if the Department of Labor certification is obtained, the employer will file USCIS Form I-129 on behalf of the proposed foreign worker. Once that application is approved, the foreign worker will be scheduled for an interview at the U.S. embassy or consulate in their home country. If the interview is approved and the worker is found to be admissible to the U.S. on all other grounds (i.e. they have no criminal convictions or prior immigration violations that render them inadmissible to the U.S.), he or she will be issued a visa with which they can enter the United States.
While the H-2A visa with any one employer cannot be issued for longer than a year, an agricultural worker may renew her H-2A if she is able to transfer to another employer who files on her behalf. However, the total duration of the agricultural worker’s stay cannot exceed 3 years.
H-2B Visas for Non-Agricultural Workers
As with the H-2A, employers of H-2B applicants must also apply for and receive a Labor Certification from the Department of Labor indicating that no U.S. workers are willing and available to fill the proposed position, and that the employment of the foreign worker will not adversely affect the wages or working conditions of similarly situated U.S. workers. Once this labor certification is approved, the application process is the same as for the H-2A.
Also like the H-2A visa, H-2B applicants must prove that their intended position in the U.S. is only for a temporary basis, which is determined by the duration of the employer’s need. To prove the temporary nature of a position, the employer “must establish that the need for the employee will end in the near, definable, future.” A temporary need for labor may be defined as a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need.
If you are a U.S. based employer who is interested in applying for temporary workers under the H-2A program, the labor certification application with the Department of Labor can be the most difficult and time-consuming aspect of the application. If you would like more information about the process and requirements, please contact our immigration lawyer for a consultation.