To qualify for H-2A nonimmigrant classification, the petitioner 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 e.g., 8 CFR 214.2(h)(5)(x) for specific details.)

Except as noted below, H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security (DHS) has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A program.

The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries in a Federal Register notice. Designation of eligible countries is valid for one year from publication.

Effective Jan. 18, 2016, nationals from the following countries are eligible to participate in the H-2A program:

* With respect to all references to “country” or “countries” in this document, it should be noted that the Taiwan Relations Act of 1979, Pub. L. No. 96-8, Section 4(b)(1), provides that “[w]henever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.” 22 U.S.C. § 3303(b)(1). Accordingly, all references to “country” or “countries” in the regulations governing whether nationals of a country are eligible for H-2 program participation, 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1), are read to include Taiwan. This is consistent with the United States’ one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.

The Secretary of Homeland Security may consider adding a country to the Eligible Country List upon receiving a recommendation from DOS or a written request from an unlisted foreign government, an employer that would like to hire nationals of an unlisted country in H-2A status, or another interested party or parties. When designating countries to include on the list, the Secretary of Homeland Security, with the concurrence of the Secretary of State, will take into account factors including, but not limited to:

1. The country’s cooperation with issuing travel documents for citizens, subjects, nationals and residents of that country who are subject to a final order of removal;
2. The number of final and unexecuted (meaning completed but not yet carried out) orders of removal against citizens, subjects, nationals and residents of that country;
3. The number of orders of removal executed against citizens, subjects, nationals and residents of that country; and
4. Other factors as may serve the U.S. interest. (See 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1)).

If you want DHS to consider adding a country to the Eligible Country List, send a written request to DHS’s Office of Policy, or DOS at a U.S. embassy or consulate. Country listings are valid for one year. DHS may add a country to the Eligible Country List at any time if the Secretary of Homeland Security determines that the country is eligible. 
A national from a country not on the list may only be the beneficiary of an approved H-2A petition if the Secretary of Homeland Security determines that it is in the U.S. interest for him or her to be the beneficiary of such a petition. (See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(5)(i)(F)(1)(ii) for additional evidentiary requirements.)

Note: If you request H-2A workers from both eligible and non-eligible countries, USCIS suggests that you file two separate petitions. Filing one petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help decrease delays in completing processing of your request for H-2A workers.

Generally, 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.   Additionally, previous time spent in other H or L classifications counts toward total H-2A time.

An H-2A worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification.  Family members are not eligible for employment in the United States while in H-4 status.

Petitioners of H-2A workers must notify USCIS within 2 workdays if any of the following occur:

• No show: The H-2A worker fails to report to work within 5 work days of the latter of:
  • The employment start date on the H-2A petition, or
  • The start date established by the employer;
• Abscondment: The H-2A worker leaves without notice and fails to report for work for 5 consecutive workdays without the consent of the employer;
• Termination: The H-2A worker is terminated before completing of  the H-2A labor or services for which he or she was hired; or
• Early Completion: The H-2A worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2A petition.

Petitioners must include the following information on the employment-related notification:

1. The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion”);
2. The reason for untimely notification and evidence for good cause, if applicable;
3. The USCIS receipt number of the approved H-2A petition;
4. The petitioner’s information, including:
   • Name
   • Address
   • Phone number
   • Employer identification number (EIN)
5. The employer’s information (if different from that of the petitioner):
   • Name
   • Address
   • Phone number
6. The H-2A worker’s information:
   • Full Name
   • Date of birth
   • Place of birth
   • Last known physical address and phone number

Additionally, to help USCIS identify the H-2A worker, submit the following for each H-2A worker, if available:

• Social Security number
• Visa number

Failure to Notify USCIS: A petitioner who fails to comply with these employment notification requirements, or fails to demonstrate good cause for untimely notification, may be required to pay $10 in liquidated damages for each instance of noncompliance.

Note: USCIS defers to DOL’s definition of “workday.”  According to the Fair Labor Standards Act (FLSA), this generally means the period of time on any particular day when an employee begins and ends his or her “principal activities.”

How do I notify USCIS?

Email or mail your notification to the California Service Center at the following addresses.  Although not required, email notification is strongly recommended to ensure timely notification.

California Service Center

A petitioner, agent, facilitator, recruiter, or similar employment service is prohibited from collecting a job placement fee or other compensation (either direct or indirect) at any time from an H-2A worker as a condition of employment.

Petitioners are provided with the opportunity to avoid denial or revocation (on notice) of their H-2A petition if they notify USCIS that they obtained information concerning the beneficiary’s payment of (or agreement to pay) a prohibited fee or compensation to any agent, facilitator, recruiter, or similar employment service only after they filed their H-2A petition. This narrow exception does not apply, however, where a petitioner knew or should have known at the time of filing of its H-2A petition that the prospective worker had paid (or agreed to pay) such recruitment-related fees to any such persons or entities.

Petitioners must notify USCIS of an H-2A worker’s payment of or agreement to pay prohibited fees to a recruiter, facilitator or similar employment service within 2 workdays of gaining knowledge of such payment or agreement.

Petitioners must include the following information in their fee-related notification:

1. The reason for the notification;
2. The USCIS receipt number of the approved H-2A petition;
3. The petitioner’s information:
   • Name
   • Address
   • Phone number
4. The employer’s information (if different from that of the petitioner):
   • Name
   • Address
   • Phone number
5. Information about the recruiter, facilitator, or placement service to which the beneficiaries paid (or agreed to pay) the prohibited fee:
   • Name
   • Address

How do I notify USCIS?