The H-2A visa program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs. A U.S. employer, a U.S. agent as described in the federal regulations, or an association of U.S. agricultural producers named as a joint employer must file Form I-129, Petition for a Nonimmigrant Worker, on a prospective worker’s behalf. And only persons (nationals) from certain countries are eligible to participate in the H-2A program.

To qualify for H-2A nonimmigrant classification, the petitioner (employer) must:

• Offer a job that is of a temporary or seasonal nature.

• Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

• Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

• Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition. A limited exception to this requirement exists in certain “emergent circumstances.” (See 8 CFR 214.2(h)(5)(x) for specific details).

Generally, U.S. Citizenship and Immigration Services (USCIS) may grant H-2A classification for up to the period of time authorized on the temporary labor certification. H-2A classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A classification is 3 years.

A person who has held H-2A nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A nonimmigrant. And previous time spent in other H or L classifications counts toward total H-2A time.

In Indiana, as in other states, the H-2A visa program is governed by federal law and regulations. Employers in Indiana can use the H-2A program to hire foreign nationals for temporary agricultural work when domestic workers are not available. To participate, Indiana employers must file Form I-129 and provide a job that is temporary or seasonal, prove the shortage of domestic workers, ensure that hiring H-2A workers won't negatively impact U.S. workers' wages and conditions, and submit a valid labor certification from the U.S. Department of Labor, except in emergent circumstances. The H-2A visa is typically granted for the period authorized on the labor certification and can be extended in one-year increments up to a maximum of three years. After three years, the worker must leave the U.S. for at least three months before they can apply for H-2A status again. Time spent in other H or L visa classifications also counts towards the three-year limit. It's important to note that while the program operates under federal law, local Indiana attorneys can assist employers with the application process and ensure compliance with all regulatory requirements.