Wages

The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must be at least as high as the applicable Adverse Effect Wage Rate (AEWR),^[3] federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher. The AEWR is established every year by the Department of Labor for every state except Alaska.

If a worker will be paid on a piece rate basis, the worker must be paid the prevailing piece rate as determined by the State Workers Agency (SWA). If the piece rate does not result in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the hourly rate, then the worker's pay must be supplemented to the equivalent hourly level. The piece rate offered must be no less than what is prevailing in the area for the same crop and/or activity.^[3]

Hiring

Hiring means an active effort, including newspaper and radio advertising in areas of expected labor supply. Such recruitment must be at least equivalent to that conducted by non-H-2A agricultural employers in the same or similar crops and area to secure U.S. workers. This must be an effort independent of and in addition to the efforts of the SWA for at least 15 days. In establishing worker qualifications and/or job specifications, the employer must designate only those qualifications and specifications which are essential to carrying out the job and which are normally required by other employers who do not hire foreign workers.

Livelihood of workers

Transportation and tools

This section needs additional citations for verification. (October 2017)

There are several provisions on the transportation of workers. The amount of transportation payment shall be no less (and shall not be required to be more) than the most economical and reasonably similar to the transportation charges for the distances involved.^[3] The employer is responsible for several forms of transportation depending on the situation. After the worker completes at least half of the work contract period, the employer must reimburse the worker for the costs of transportation and subsistence from the place of recruitment to the place of work if these expenses were charged to the worker. The employer must provide free transportation to the worker between the employer's housing and the area of work. And upon completion of the work contract, the employer must pay the costs of a worker's subsistence and transportation back to the place of recruitment. Some special conditions apply when the worker does not return to the area of recruitment because they are moving to another job. If the employer compensates foreign workers for transportation costs then they must do so for U.S. workers as well. If the employer provides transportation for foreign workers, they must provide transportation to US workers as well.

The employer must cover the cost of tools and supplies necessary to carry out the work at no cost to the worker, unless this is uncommon and the occupation calls for the worker to provide certain items.

Job order (ETA Form 790)

A job offer (ETA Form 790) must be filed with the State Workforce Agency (SWA) in the area of intended employment between 60 and 75 days before the date of need for workers.^[5] Each State Workforce Agency has a mailing address and some have websites, contact email addresses, and phone numbers. The State Workforce Agency is also responsible for handling job orders for the H-2B visa, but the specific contact person or mailing address may differ.^[8] The job orders are publicly listed by the State Workforce Agency (including on their website). Additionally, the employer must advertise for the position in local newspapers. Any United States citizen who applies for the job must be given one.^[9]

H-2A Temporary Labor Certification from the U.S. Department of Labor

The employer needs to obtain a Temporary Labor Certification (TLC) from the United States Department of Labor Employment & Training Administration's Office of Foreign Labor Certification.^[5] Note that this labor certification should not be confused with PERM labor certification for employment-based permanent immigration, or with the Labor Condition Application for H-1B and similar statuses. It is also separate from a similar process for H-2B temporary labor certification.

The application package must include ETA Form 9142A and an accepted Job Order (ETA Form 790) from the State Workforce Agency. It must be filed with the Chicago National Processing Center or online through the iCert portal, no less than 45 days prior to the employer's date of need.^[5]

In order to approve the certification, the Department must verify that:

1. there are not sufficient able, willing, and qualified U.S. workers available to perform the temporary and seasonal agricultural employment for which nonimmigrant foreign workers are being requested; and
2. employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide numerous worker protections and employer requirements with respect to wages and working conditions. The Department's Wage and Hour Division (WHD) has responsibility for enforcing provisions of worker contracts.

Form I-129 petition submitted to U.S. Citizenship and Immigration Services

The employer must submit a Form I-129 (Petition for a Nonimmigrant Worker) on behalf of the prospective worker (beneficiary) with the United States Citizenship and Immigration Services, with the job order (ETA Form 790) and the approved H-2A Temporary Labor Certification as initial evidence.^[6] Note that Form I-129 is used for a large number of nonimmigrant worker statuses, not just the H-2A. Those using it for the H-2A status need to fill the main form followed by the H classification supplement, Pages 13–17.^[10]

The H-2A status is one of the statuses where it is possible for a single Form I-129 to be used for multiple beneficiaries. Additional beneficiaries may be listed on Attachment 1 (Pages 35–36) of Form I-129. However, all beneficiaries listed in a single petition must have the same requested start and end date, and they are all approved together. In case different start dates are needed for different beneficiaries, or one of them has a more complicated situation (so that beneficiary's petition may be delayed) employers are advised to file separate I-129s for such employees.^[6][10]

The filing fee for Form I-129 is $460. Forms are automatically expedited given the seasonal and time-sensitive nature of agricultural work, but it is also possible to request Premium Processing Service for $1225 to get an initial response within 15 calendar days.^[11]

In general, Form I-129 petitions can be submitted six months in advance of the job start date. However, since the petition's initial evidence includes a job order, that must be filed between 60 and 75 days before the start date, the application can effectively be submitted at most 75 days prior to the start date.

Visa application

If the beneficiary is already in the United States in a valid status and with no requirement to leave the United States, the beneficiary can simply transition to H-2A status. If the beneficiary is outside the United States, two additional steps are needed:^[6]

• The beneficiary must apply for a H-2A visa to a United States consulate in his or her home country with the approved Form I-129 petition, ETA Form 790, approved Temporary Labor Certification, and other necessary documents. The visa decision is made by a consular officer representing the U.S. Department of State.
• Armed with the H-2A visa and other documents, the beneficiary may present himself or herself at a port of entry, where an officer working for U.S. Customs and Border Protection issues the beneficiary a Form I-94 for H-2A status.

Basic rules

Below are the basic rules governing the H-2A status:^[6]

• Each Form I-129 petition for initial employment or extension of employment can be for a duration of at most one year.
• After the worker has completed three years in H-2A status, the worker must leave the United States for at least three months before being able to return in H-2A status. In fact, the rules count continuous stay across all H statuses for the purpose of counting the three years.

Calculation of interrupted stay

For workers who leave the United States temporarily, the following rules apply with respect to excluding time outside the United States:^[13]

• If the worker was in the United States for 18 months or less, then H-2 time is interrupted if the worker is outside the United States for at least 45 days but less than 3 months. This means that time spent outside the United States will not count toward the 3-year limit, but rather, upon return, the worker's clock will resume from where it left off at the time of departure.
• If the worker has been in the United States for somewhere between 18 months and 3 years, the worker's H-2 time is interrupted if the worker is outside the United States for at least 2 months but less than 3 months.

Note that the time needed outside the United States in order to qualify for an interrupted stay exceeds the maximum time permissible for automatic visa revalidation, which is 30 days.

If the worker is outside the United States for 3 months or more, the worker's clock is completely reset, and whenever the worker next returns on a H-2 visa, the worker's time in the United States starts from zero.

Introduction in 1986

The Immigration and Nationality Act of 1952 introduced a temporary unskilled worker category, the H-2 category. The Immigration Reform and Control Act of 1986 subdivided this category into two subcategories: the H-2A (an uncapped category for temporary agricultural workers) and H-2B (a capped category for temporary workers in other domains). The particular importance given to temporary agricultural workers was intended to balance the potential decline in the illegal immigrant population due to the increased border security and immigration enforcement provisions of the Act.^[14]

Introduction of Premium Processing Service in 2001

On June 1, 2001, the Premium Processing Service was introduced at a price of $1000, available for Form I-129 petitions for most statuses, including the H-2A status.^[15] In November 2010, the Premium Processing Service fee was hiked from $1000 to $1225 as part of a general change to the fee schedule for USCIS forms.

Changes to the Eligible Countries List

The Eligible Countries List for the H-2A was created through a rule published by the U.S. Department of Homeland Security on December 18, 2008 and effective January 17, 2009.^[16] The list has grown gradually from 28 countries in the beginning to 84 countries as of 2016. Summarized below are the dates of various Federal Register announcements on updates to the list, with the total number of countries, number of new countries added, and the names of the new countries added. The dates listed below are the announcement dates. The date that the list becomes effective may be a little after the announcement date. Generally, updated lists become effective starting around January 17 or January 18 of the year.

Visa approvals by fiscal year and country

Note that the count below is of the number of visas issued by a United States consular officer. The years here are Fiscal Years, so for instance the year 2004 refers to the period from October 1, 2003 to September 30, 2004. These should approximately match but may not exactly match with the number of Form I-129 approvals of H-2A status by the United States Citizenship and Immigration Services, or the actual number of workers who arrive in the United States in H-2A status.^[25] The countries included in the chart below are selected as the top users in Fiscal Year 2014. In addition to the top users of Fiscal Year 2014, Thailand and Haiti are included because they used to be bigger users of the program in past years. Note that the Eligible Countries List became active starting January 2009, so Haiti and Thailand had a dip in their usage between the time the list became active and the time they were added to the list.

As can be seen from the data below, Mexico has consistently accounted for over 90% of the use of the H-2A visa. Currently, the other source countries for H-2A visa holders are mostly from the Americas, in regions physically close to the United States. The biggest user from the African continent is South Africa (accounting for over 90% of usage from Africa) and the biggest user from Europe is Romania (accounting for about half of the usage from Europe). Also, whereas Mexico and Peru have been consistently strong users of the program since 1997 (when records started being kept), the usage by other countries has started more recently.

Number of petitions approved by USCIS broken down by quarter and state

Since Fiscal Year 2012, the USCIS has released data on the number of H-2A petitions (Forms I-129) received, approved, and denied, broken down by quarter, U.S. state, and employer.^[26] Note the following caveats:

• Years and quarters use the United States fiscal year, that starts on October 1 of the previous calendar year and ends on September 30 of the calendar year. For instance, 2012 Q1 starts on October 1, 2011 and ends on December 31, 2011.
• Since a single H-2A petition can be filed for multiple workers, the number of approved petitions is substantially less than the number of workers who were approved.
• The quarter in which a petition is received may not be the same as the quarter in which it is approved. Similarly, the quarter in which a petition is approved may not be the same as the quarter in which a visa based on the petition is issued (however, the process is likely to span at most two adjacent quarters, due to the expedition of processing for H-2A petitions and the fact that a petition cannot be filed more than 75 days before the start date).

Variation based on the quarter and state reflects seasonal and geographical differences in demand for agricultural labor. In FY 2017, more than half of all H-2A positioned were certified to work-sites in just five states: North Carolina, Washington (state), Florida, Georgia (U.S. state), and California.^[27]

Data for some quarters is included below.^[28][29][30]