Is there a Visa for Farm Workers and Other Labor?
H-2A Visas – Agricultural Workers
The H-2A-visa is reserved for agricultural workers. This visa was introduced by Congress in 1986 to remedy the plight of undocumented workers who lacked labor protections from employers. To qualify for H-2A nonimmigrant classification, the petitioner must: 1) offer a job that is of a temporary or seasonal nature; 2) demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work; and 3) show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.[1]
A single valid temporary labor certification from the U.S. Department of Labor is generally submitted with a H-2A visa. (A limited exception to this requirement exists in certain “emergent circumstances.”) See e.g., 8 CFR § 214.2(h)(5)(x)).
The H-2A visa is only available to nationals of certain countries designated by the Secretary of Homeland Security as eligible to participate in the program. A national from a country not designated by the Secretary of Homeland Security may be the beneficiary of a petition if the Secretary of Homeland Security determines it is in the interest of the U.S.
H-2B Visas – Non-Agricultural Workers
The H-2B visa program covers unskilled workers outside of agricultural employment. These industries may include landscaping, housekeeping, and construction labor. An H-2B is available if the petitioner (the employer) is need of temporary services for a single event or project with a definite end point. The petitioner for a H-2B visa must prove that:
1) there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work;
2) the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and
3) its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.[2]
The employer’s need is considered temporary if it is a(n):
A) one-time occurrence – A petitioner claiming a one-time occurrence must show that it has: I) not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or II) an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker; or
B) seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is: I)traditionally tied to a season of the year by an event or pattern; and II) of a recurring nature (employment is not seasonal if the period during which the labor is needed is unpredictable, subject to change, or considered a vacation period for the employer’s permanent employees); or
C) peakload need – A petitioner claiming a peak load need must show that it: I) regularly employs permanent workers to perform the services or labor at the place of employment; II) needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and III) the temporary additions to staff will not become part of the employer's regular operation; or
D) intermittent need – A petitioner claiming an intermittent need must show that it: I) has not employed permanent or full-time workers to perform the services or labor; and II) occasionally or intermittently needs temporary workers to perform services or labor for short periods.[3]
Congress has set a cap of 66,000 visas per fiscal year with 33,000 visas set for the first half of the fiscal year and 33,000 visas set for the second half of the fiscal year.[4] Limited exceptions to the cap are available for laborers in the fish roe industry.[5]
[1] INA § 101(a)(15)(H)(2)(A); http://www.uscis.gov/working-united-states/temporary-workers/h-2a-agricultural-workers/h-2a-temporary-agricultural-workers
[2] INA § 101(a)(15)(H)(2)(B); http://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/h-2b-temporary-non-agricultural-workers
[3] 8 C.F.R. § 214.2(h)(6)(ii)(B)
[4] 8 C.F.R. § 214.2(h)(8)(i)(c), (h)(8)(ii), and (h)(14)
[5] PL No. 108-287, 118 Stat. 1014 (August 5, 2004)