H-2A Visa, Agricultural Workers in Charleston, SC

This is a non-immigrant program for only seasonal agricultural workers on a temporary basis. The U.S. future employer, a recruiter, or a U.S. agent must process the petition. And frequently, any filing for a renewal must commence immediately after the approval, which takes approximately 8 months. Since it is temporary, the visa will not lead to permanent residency (green card). Also, the USCIS puts an annual cap on the number of visas issued each year.

Employer Must Show:

• There are not enough U.S. workers available who can fulfill its requirements at the location and time needed.
• Temporary employment of this kind will not adversely affect the wages and working conditions of similarly employed U.S. workers.
• The offered job is a temporary, seasonal, agricultural job.
• It first obtained a temporary labor certificate from the U.S. Department of Labor (DOL).
• It offers the same wage to the foreign worker that it would pay a U.S. worker. The higher of the prevailing wage or the minimum federal or state wage,
• It will pay the reasonable cost of the worker (not his spouse & children) to return to his foreign home after fulfilling the work period,
• It will provide workers' compensation insurance for the worker.
• It will provide the worker's cost of transportation from his temporary U.S. home to the workplace.
• It will provide temporary housing if no commute to work is involved.
• It will provide the worker three meals a day.
• It will provide the worker all necessary tools, equipment, and supplies to do its job.

Eligible Worker Home Countries

Workers from some 63 countries are eligible to participate in this program. There are some exceptions for workers of non-participating countries. But they should not be listed on a petition with participating country workers. Currently, these countries are:

• Argentina, Australia, Austria
• Barbados, Belize, Brazil, Bulgaria
• Canada, Chile, Costa Rica, Croatia
• Dominican Republic
• Ecuador, El Salvador, Estonia, Ethiopia
• Fiji
• Grenada, Guatemala
• Haiti, Honduras, Hungary
• Iceland, Ireland, Israel, Italy
• Jamaica, Japan
• Kiribati
• Latvia, Lithuania
• Macedonia, Mexico, Moldova, Montenegro
• Nauru, the Netherlands, Nicaragua, New Zealand, Norway
• Panama, Papua New Guinea, Peru, the Philippines, Poland
• Romania
• Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland
• Thailand, Tonga, Turkey, Tuvalu
• Ukraine, United Kingdom, Uruguay
• Vanuatu

Period of Stay, Renewals & Portability

The visa is valid for 1 year and can be renewed year by year for up to 3 years. Each year requires recertification. After 3 years, the worker must depart the U.S. for 6 months before being eligible to apply again. Previous time spent in the U.S. in another H or L classification counts toward the 3-year maximum stay. Employees under certain circumstances can change employers via portability.

Spouse and Children

A spouse and children under 21 can also enter under the H-4 visa classification; they cannot work, but they are permitted to attend school.

Filing Procedure

• A U.S. employer, agent, or recruiter files an Application for Alien Employment Certification with the state workforce agency where the employment will be and the U.S. Department of Labor (DOL) at least 45 days before the worker is needed.
• Then, after conducting a recruitment for U.S. workers satisfactory to the DOL so it will issue its certificate if no U.S. workers can be employed,
• The U.S. employer submits to the USCIS the original certificate along with a USCIS Form I-129, accompanying documentation, and pays all required filing fees.
• Upon approval and the USCIS forwarding of the approval to the appropriate U.S. Embassy or Consulate, notification to the worker shall be given, and the worker shall apply for an H-2A visa.

Employer Notifications to the USCIS

After approval, the employer must notify the USCIS if

• The worker is a no-show.
• The worker arrives and then absconds without notice to the employer.
• The worker is terminated with or without cause.
• The worker's job is terminated 30 or more days before the completion date.

The employer faces penalties for failure to make the required report.