At Wilner & O’Reilly, we understand the crucial role agriculture plays in Fresno County. Seasonal labor shortages often challenge local growers, making the H‑2A visa program an invaluable resource. This program is specifically designed to assist agricultural employers in hiring temporary foreign workers when U.S. workers are unavailable. Successfully navigating the H‑2A process involves understanding eligibility requirements, recruitment obligations, and proper filing procedures.
Eligibility Criteria for H‑2A Visa Employers
To qualify for the H‑2A program, Fresno County growers must demonstrate:
- The employment offered is temporary or seasonal in nature.
- There is a lack of sufficient, able, willing, and qualified U.S. workers to perform the job.
- Hiring H‑2A workers will not negatively impact wages and working conditions of similarly employed U.S. workers.
- Compliance with federal wage requirements, including the Adverse Effect Wage Rate (AEWR).
The Recruitment Process for H‑2A Workers
Before applying for H‑2A workers, employers must first attempt to recruit U.S. workers by:
- Placing a job order with California’s State Workforce Agency (SWA) at least 60 days prior to the employment start date.
- Advertising job openings through appropriate local media channels.
- Maintaining comprehensive records documenting recruitment efforts and results.
Steps to File an H‑2A Application
The H‑2A filing process involves two primary stages:
1. Obtaining DOL Certification
- Complete and submit Form ETA‑790 (Agricultural Clearance Order) to the SWA.
- File Form ETA‑9142A with the Department of Labor to secure temporary labor certification.
2. Filing with USCIS
- After receiving DOL certification, submit Form I‑129 (Petition for Nonimmigrant Worker) to USCIS.
- Once USCIS approves, workers can apply for their H‑2A visas at U.S. consulates abroad.
Did you know that employers utilizing the H‑2A program are legally required to provide free housing and cover travel costs for their workers?
Compliance Obligations for Employers
Employers utilizing the H‑2A program must strictly adhere to several requirements:
- Provide rent-free, DOL-approved housing to workers.
- Cover transportation costs after completion of half the contracted period.
- Maintain accurate payroll, attendance, and housing condition records.
- Follow all terms set forth in the labor certification and USCIS petition.
Common Challenges and Solutions
Employers frequently encounter challenges such as incomplete documentation, delayed filings, or inadequate housing arrangements. To avoid these issues, proactive measures should be taken, including early planning, thorough documentation, and ensuring housing meets required standards from the outset.
Extension and Change of Status for H‑2A Workers
If agricultural needs extend beyond initial timelines, employers may apply for extensions. This requires filing a new labor certification with DOL and a subsequent petition with USCIS, provided all eligibility criteria remain met and compliance is ongoing.
Economic Importance for Fresno County
The H‑2A program significantly benefits Fresno County’s agricultural sector by ensuring timely harvests, supporting local economic stability, and maintaining consistent production despite domestic labor shortages. This reliable workforce is essential to sustain the county’s thriving agricultural economy.
When to Seek Professional Assistance
The H‑2A visa process can be complex, with nuances that require specialized knowledge. Engaging experienced immigration attorneys can streamline applications, ensure compliance, and help prevent costly delays or complications.
Conclusion
At Wilner & O’Reilly, our dedicated attorneys specialize in assisting Fresno County agricultural employers through every step of the H‑2A visa application process. Our goal is to simplify the complexities and ensure compliance, allowing you to focus on your operations. To learn more about how we can assist with your H‑2A visa needs, contact us.
Frequently Asked Questions
Are H‑2A visa holders permitted to change employers?
No, H‑2A workers are only authorized to work for the employer who petitioned for them, unless a new petition is approved.
What housing standards must employers meet for H‑2A workers?
Employers must provide free, safe, and sanitary housing compliant with DOL regulations.
What is the maximum duration of stay under an H‑2A visa?
Workers can generally remain for the duration of the approved seasonal or temporary employment period, usually up to one year, with possible annual extensions.
Can H‑2A workers bring family members?
Yes, family members can accompany them on H‑4 visas, although these dependents are not authorized to work.
What happens if an H‑2A worker leaves the job early?
Employers must notify USCIS and the DOL within two business days if a worker abandons employment.
Is there a cap on H‑2A visas each year?
No, the H‑2A visa category currently has no annual cap.
Do H‑2A workers qualify for permanent residency?
No, the H‑2A program does not directly lead to permanent residency; other immigration avenues must be pursued.
How far in advance should growers apply for H‑2A workers?
Applications should begin at least 60–75 days prior to the employment start date to avoid delays.
Are H‑2A workers entitled to overtime pay?
Typically no, unless required by specific state laws or individual employment contracts.
What travel expenses must employers cover?
Employers must reimburse transportation costs to and from the workers’ home countries after completion of half the contract period.
Comments are closed.