The H-2A Visa Process, From Job Order to Arrival

The H-2A visa process runs backward from one date: your date of need, the first day you need workers in the field. Every deadline is counted from it. The job order goes in 60 to 75 days before that date. The application for temporary labor certification must be filed at least 45 days before. If the application is complete and you have met the requirements, DOL is supposed to decide it at least 30 days before. Then USCIS approves the I-129 petition and the workers obtain visas at a U.S. consulate. Miss the front end of that calendar and the harvest does not wait. Our H-2A visa services for growers are built around this calendar; here is what happens at each stage.

Step 1: Fix the date of need and the season

Start by deciding when the work begins and when it ends, using last year’s payroll and harvest records. The dates go on every form that follows, and changing them after filing is difficult. Make sure the work itself qualifies: the job must be agricultural and the need seasonal or temporary, which our article on which farm jobs qualify for H-2A explains.

Decide at the same time how many workers you need, where they will live, and how they will get to the fields each day. Those answers go into the job order.

Step 2: The job order and housing (60 to 75 days out)

The job order, Form ETA-790/790A with its H-2A addendum, is the contract offer to every worker, U.S. or foreign. It must state the wage, the hours, the duties, any experience requirement, the housing, meals or cooking facilities, transportation, the three-fourths guarantee, and every other term the regulations require. It is submitted through DOL’s FLAG system in the window between 75 and 60 days before the date of need, and the state workforce agency then reviews it and circulates it to recruit U.S. workers.

Housing has to be inspected and approved before DOL will certify the application, so book that inspection as soon as the job order is in. Our guide to H-2A housing requirements covers what inspectors look for.

Step 3: The H-2A application (at least 45 days out)

The employer files Form ETA-9142A, the H-2A Application for Temporary Employment Certification, with DOL’s National Processing Center, at least 45 days before the date of need. Associations, agents, and labor contractors file additional documents; a labor contractor, for example, must include its surety bond and its agreements with the growers where crews will work.

DOL reviews the application and either issues a Notice of Deficiency listing problems to fix or a Notice of Acceptance with recruitment instructions. Respond to a deficiency notice quickly and completely, because every day spent on corrections comes out of the time before your date of need.

Step 4: Recruiting U.S. workers

After acceptance, the employer must make positive efforts to recruit U.S. workers. That means contacting the U.S. workers it employed in the previous season (other than those dismissed for cause or who left early), carrying out any additional recruitment DOL directs, and hiring qualified U.S. applicants who respond. The employer then submits a recruitment report.

The obligation does not end at certification. Under the 50 percent rule, an H-2A employer must hire qualified U.S. workers who apply until half of the work contract period has passed, even if the H-2A workers have already arrived.

Step 5: Certification and Form I-129

Once DOL certifies the application, the employer files Form I-129 with USCIS, with the labor certification, to request H-2A classification for the workers. Petitions may name the workers or, in many cases, request unnamed workers. Premium processing is available for many H-2A petitions; check the current USCIS list before relying on it.

Step 6: Visas, travel, and arrival

With the approved petition, workers complete the DS-160 and attend interviews at a U.S. consulate. Many employers coordinate group appointments through their recruiter or association. The H-2A is not a dual intent visa, so workers should be ready to explain their ties at home. After the visas issue, the workers travel, are admitted by Customs and Border Protection, and start work on or after the date of need. The employer’s reimbursement duties for inbound travel begin here; our article on what an H-2A employer must pay sets out when each cost is due.

What slows the calendar down

The usual causes are predictable: a deficiency notice on the job order or application, a housing inspection that is not scheduled in time, a shortage of consular appointments in peak season, unresolved compliance issues from a prior year, and late decisions about how many workers to request. If workers fail to arrive or a season changes unexpectedly, DOL can waive the 45-day filing period for good cause in emergency situations, but that is an exception and not a plan. Employers who run H-2A year after year treat the calendar as a fixed operating cost, which is the approach our business immigration group takes with every grower.

If you are planning a season with H-2A workers and want the filings sequenced against your date of need, a consultation with Capitol Law Partners can map the right path for your situation. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our H-2A visa process for employers page or schedule a consultation.