Introduction
If you are a farmer, there are a few things that you need to know about H-2A visa. This is a non-immigrant visa that allows foreign nationals to come into the U.S. and work as seasonal agricultural workers or temporary nonagricultural workers. It is important for farmers to understand the requirements of this visa so they can make sure they are not violating any laws when hiring foreign workers.
What is the H-2A visa?
The H-2A visa is a temporary agricultural worker visa. It’s for seasonal foreign farmworkers who are not permanent residents of the US and will be in the US for up to one year. That means that if you’re planning to hire foreign workers for longer than one year, or if you want non-seasonal labor like housekeeping staff, then the H-2A isn’t going to work for you.
If your business needs migrant workers on an ongoing basis, it’s more likely that you’ll need a different type of visa—one that lets a person live permanently in America (called an H-1B).
Who is eligible for this visa?
The H-2A visa is available to agricultural workers who have been employed in agriculture for at least three years out of the last six. It is also available to those who are able to demonstrate that they are coming from countries with which the US has a free trade agreement (FTA). The employer must be able to demonstrate that there are not enough domestic workers willing or qualified to do the job, and that granting H-2A status will not negatively impact wages or working conditions of similarly employed U.S. workers.
Who isn’t eligible?
If you have been convicted of certain crimes, you may not be eligible for a visa as an agricultural worker. These include rape; sexual abuse; murder; illicit drug trafficking; prostitution; kidnapping; burglary; extortion; assault on a minor (any crime against another person); abduction (holding someone against their will); manslaughter resulting from operating a motor vehicle under the influence of alcohol or drugs.
How should we apply for this visa?
The employer must submit an application for applicant, which includes a job offer letter, a copy of the contract and the prevailing wage for that position. They must also submit at least 45 days before the date of need. The employer’s application should be filed with USCIS Service Center where they submitted their I-129 petition (if they were approved).
The petitioner must file Form I-129P, Petition for Nonimmigrant Worker on behalf of H-2A workers within sixty days after receiving notice from USCIS that its corresponding application has been approved. The form must be accompanied by evidence that establishes that there is no strike or lockout in progress at the worksite; evidence establishing compliance with program requirements; any additional information required by regulations; and any applicable fees associated with filing this petition
What are violations of this visa?
The following are violations of the H-2A visa:
- Failure to pay the required wage
- Failure to provide housing
- Failure to provide transportation for workers from the location of recruitment or hiring to work sites, if normally provided by the employer at no cost to employees;
- Failure to provide worker’s compensation insurance where required;
- Failure to provide free housing and utilities where such housing is provided;
- Failure to provide free food and/or beverages as an integral part of any meal plan in which they are served (i.e., meals must be made available);
- A violation by an employer who willfully fails or refuses, abandons, terminates, takes reprisals against any worker(s) because he/she has filed a complaint under this section if such filing was not frivolous or knowingly false;
What risks does an employee have if they run in violation of the H-2A visa?
If you are in violation of the H-2A visa laws, you could be subject to fines up to $1,000 per violation. You could also be banned from applying for future visas and your employer could have their ability to hire foreign workers suspended or revoked.
What are the penalty details?
The penalty for a violation of the H-2A visa is $1,000. The penalty for a willful violation is $5,000. The penalty for a repeat violation is $10,000 and the penalty for a pattern or practice of violations is $25,000.
Be aware of the risks you take if you enter into an agreement with a worker.
If you hire an H-2A worker, you are responsible for their actions. This means that if the worker commits a crime or causes damage to your property, you might be held liable.
You are responsible for the well-being of your temporary agricultural workers. You need to make sure that they have adequate housing, food, and medical care while they’re working on your farm. They also need transportation from home to work and back again (if applicable). As long as these needs are being met by the employer, then there’s nothing else to worry about!
You’re also responsible for keeping track of all taxes owed by each employee—including Social Security tax and Medicare tax withheld from wages paid; federal income tax withheld from wages paid; FUTA (that’s “F” not “FAT”) unemployment contributions paid; SUTA state unemployment contributions paid under an approved state program; COBRA continuation coverage premiums required under section 4980B (relating to continuation coverage) of the Internal Revenue Code (“Code”) with respect to any applicable period
Conclusion
If you are hiring a temporary agricultural worker, be aware of the risks and make sure to follow the H-2A visa guidelines. If you have any questions about these guidelines or applying for an H-2A visa, contact an attorney specializing in immigration.
