Changes to the H-2A Program

USCIS announced last week changes to the H-2A program which changes would streamline the hiring process for temporary and seasonal agricultural workers.  The final rule is intended to facilitate the H-2A process for employers by removing certain limitations and to encourage lawful employment.

About the H-2A Program

The H-2A visa allows a foreign national entry into the U.S. for temporary or seasonal agricultural work. There are several requirements of the employer in regards to this visa. The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Currently in the United States there are about 30,000 temporary agricultural workers.

Major Changes to the H-2A Program

Among the major changes to the H-2A program are:

• Relaxing the current limitations on H-2A employers to petition for multiple, unnamed agricultural workers;
• Extending from 10 days to 30 days the time a temporary or seasonal agricultural worker may remain in the country following the expiration of his or her temporary H-2A stay;
• Reducing from six months to three months the time an H-2A worker who has spent three years in the United States must reside and be physically present outside the United States before he or she
  is eligible to re-obtain H-2A status;
• Allowing H-2A workers, who are changing from one H-2A employer to another H-2A employer, to begin work with the new petitioning employer upon the filing of a new H-2A petition, provided the new employer is participating in USCIS’ E-Verify program;
• Prohibiting H-2A employers and recruiters from imposing certain fees on prospective H-2A workers as a condition of employment;
• Requiring an approved temporary labor certification in connection with all H-2A petitions;
• Requiring employers to notify USCIS when H-2A workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite; and
• Permitting the approval of H-2A petitions only for nationals of certain countries designated as
  important to the operation of the program and appearing on a list to be published annually in the Federal Register. The initial list of participating countries to be published simultaneously with
  this Final Rule includes Mexico, Jamaica, and 26 others. DHS may allow on a case-by-case basis worker from a country not on the list to be eligible for the H-2A program if such participation is in the U.S. interest.

The new rules have been transmitted to the Federal Register and will become effective 30 days after they have been posted.