Now that winter is here, many agribusinesses may be reminded of Aesop’s fable, “The Ant and the Grasshopper.”
In this old story, the Grasshopper — as it hopped about leisurely one summer’s day — came upon an Ant toiling in the hot sun. As the Ant tirelessly worked to move some food near its home, the Grasshopper said, “You should come take a break with me out of this hot sun!” The Ant replied, “I am helping to lay up food for the winter, and recommend you to do the same.” The Grasshopper laughed and said, “We have plenty of food! There is no need to worry about the winter!” The Ant ignored the Grasshopper and continued its toil. Of course, when winter came, the Grasshopper had no food and found itself hungry, at last realizing that it is best to prepare for days of need.
The moral of Aesop’s fable is readily applicable to employers considering the H-2A visa program for much-needed agriculture workers.
For background purposes, an H-2A visa allows an employer to sponsor a foreign national to enter the United States to engage in temporary or seasonal agricultural work for one year or, if extended, up to three years. Like the Ant, employers should begin planning for H-2A sponsorship before labor intensive seasons approach, because H-2A visas are only available if:
- The sponsoring employer can prove that there are not sufficient able, willing and qualified domestic workers for the positions
- The employment of H-2A workers will not adversely affect the wages and working conditions of similarly-employed U.S. workers
To satisfy these conditions, employers must make good faith efforts to recruit domestic workers in the relevant labor market. Accordingly, a job offer must be filed with the applicable state workforce agency between 60 and 75 days before the workers are needed.
There are numerous additional steps in this entire process, such as:
- Applying to the U.S. Department of Labor for a temporary labor certification and any other additional steps required
- Filing a recruitment report with DOL
- Obtaining a certified Temporary Labor Certification from DOL
- Filing an H-2A petition with U.S. Citizenship and Immigration Services
Once the H-2A visas are approved by USCIS, the prospective H-2A workers can then apply for the H-2A visa at a U.S. Embassy or Consulate abroad, or otherwise apply for a change or extension of status.
Sponsoring H-2A workers comes with certain unique legal obligations for employers. For instance, employers are required to provide H-2A workers with transportation, safe housing and certain mandatory wages determined by the DOL for the duration of the seasonal employment. Additionally, H-2A workers are guaranteed employment for at least three-fourths of the workdays described in their employment contract. If the employer fails to meet this requirement, the H-2A workers must be paid for three-fourths of the initially promised days of work.
H-2A workers are critical in assisting certain markets with the production of high-value crops in Arkansas and within the United States. As winter approaches, employers with labor needs will benefit greatly from ample planning, as the process from start to finish can last three months before a foreign worker is allowed entrance into the United States. Accordingly, like the Ant in Aesop’s Fable, employers should begin working on H-2A petitions as soon as possible.
Please contact an attorney from the Firm’s Immigration Section for more information about this topic.
This post was written in collaboration with Abtin Mehdizadegan, an associate attorney with Cross, Gunter, Witherspoon & Galchus, P.C.