Obtaining approvals from government agencies for H2A labor can be burdensome and frustrating. Any error in the application process can leave a farmer in a bind. Here is what you should know about a factsheet designed to guide farmers through the application process. 

This resource, Navigating the H-2A Application Process, is produced by the office of U.S. Rep. Rick Crawford, R-Ark. It is updated with current regulations and provides web links, timelines, and common mistakes to avoid along the way. 

Crawford said, “While the H2A program is supposed to be a tool for producers to utilize, it is very complex and often difficult to navigate. Any hiccups in paperwork can cause a delay in the arrival of workers. The window for planting and harvesting is so narrow that delays can greatly impact a farmer’s yield.  

“The farmers my office works with have been very appreciative of this guide, because it gives them information they need to minimize unnecessary delays during the H2A process, and it can help them get their workers here on time.” 

This factsheet is national in scope, aside from Arkansas-specific details for obtaining a driver’s license. Any U.S. farmer can rely on this information and take concerns to their Congressional representative.  

Related:H2A regulations can cover a lot of ground

Background of the H2A guide 

A healthy economy depends on a robust agriculture sector. Crawford underscored that agriculture is a huge part of the economy and the rural American lifestyle. In Arkansas, agriculture is the state’s largest industry, with an annual economic contribution of $20.9 billion. 

Through the H2A program, U.S. employers are allowed to bring foreign agricultural workers to America for temporary, seasonal work. While the program has been around for decades, demand has taken off in recent years. 

Crawford said, “This is where the H2A worker program comes in. The program provides extra workers for farmers during their busier seasons. Without the H2A worker program, our nation’s food supply would decline, and our economy would suffer.”.

At Crawford’s Jonesboro office, Sherrie Mitchell handles H2A federal casework as senior casework manager. She said there are over 6,000 foreign workers who come to Arkansas each year, and that number is increasing 5% annually.  

As the program grows, so do the number of casework instances that come across Mitchell’s desk. This uptick was most noticeable during COVID, when farmers were challenged by labor shortages. Before that, it was common for Mitchell to receive around five H2A-related cases per year. Fast forward to 2024, and her H2A casework skyrocketed to 91 instances. The Congressman's office did their best to intervene.

Related:From Right to Repair to rules regarding H2A worker program, Lashmet addresses legal questions

Mitchell said, “We identified where hiccups and delays were happening in the H2A process because the farmers contacted us. Many of them were facing the same issues, so we contacted the relevant agencies to see if they were aware of the situation. In most cases, they were not. 

“We understood that fixing these issues would take time, so we created a list of problems the farmers were facing with the application process and the suggested actions from the Congressman.” 

From there, the factsheet was developed. The guide focuses on key government agencies involved in the H2A application process, like the U.S. Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), Department of State, and the Arkansas Office of Motor Vehicles (DMV). 

How to start the H2A application 

A farmer should begin the application process around 75 days (and no less than 60 days) before the worker’s start date. The application is initiated with the DOL, where a farmer demonstrates the need for temporary, seasonal work. 

A job description is posted on the DOL job registry, and qualified U.S. applicants are prioritized for recruitment. If there are no qualified domestic applicants, the farmer can obtain a Temporary License Certificate to recruit foreign labor. 

For DOL paperwork, H2A wages and housing must be determined. Housing inspection is mandatory, and regulations are tedious. The correct property address is imperative, and the home must provide adequate space, water, toilet facilities, and bedding for the number of workers requested. 

The shelter should be sound without missing or broken steps, and screens are required for all windows and exterior doors. Links to full checklists from the DOL are included in the H2A guide with standards of the Employment and Training Administration and Occupational and Safety Health Administration. 

This DOL process is estimated to take 30 days to complete. Once approved, the farmer can file a Petition for a Nonimmigrant Worker, or an I-129, to the USCIS. 

Steps for filing a petition for foreign labor 

USCIS is the second agency involved in an H2A application. Here, a farmer files an I-129 petition seeking permission to bring foreign workers to America. Each petition can request up to 25 workers.  

Unfortunately, the I-129 cannot be submitted online. All petitions must be mailed in; however, an online option is on the horizon.  

Crawford said, “This Congress, I led a bipartisan working group that focused on the problems with ag labor, specifically with the H2A program.”  The congressional working group presented nearly 30 recommendations. Of those, one addressed the need for an online I-129 submission.  

While farmers cannot control the speed of the postal service, they can be proactive to avoid H2A delays or application rejections. Mitchell highlighted tips for submitting an I-129: 

In 2024, fees increased, and they vary by farm type and number of farm workers. Additionally, for every I-129 petition, farmers must pay an additional $600 asylum fee. Mitchell stressed the importance of sending the correct payment, and a link to the updated USCIS fee schedule can be found in the factsheet. 

What to expect after submitting an I-129 

Once received, USCIS has 15 working days to respond to I-129 petitions. Farmers can check their USCIS case status online, and tracking the progress is recommended. Expect an email notification to follow with two possible outcomes: an approval with an I-797B or a request for more information. 

If approved, the USCIS mails a receipt to the farmer. However, Mitchell said to avoid postal service delays, you should reach out to your Congressional representative, who can request a digital copy of the approved I-129 from the USCIS. 

Mitchell said, “I tell people to monitor the site. If you have not heard anything within 15 days, call our office and we will figure out what is going on. USCIS has been wonderful with a quick turnaround in working with Congressman Crawford’s office.” 

From there, the H2A worker presents the I-129 approval to apply for a work visa through the U.S. Department of State. Note that workers from Mexico can submit the I-129 approval email their employer received from USCIS.  

However, the South African Embassy requires the actual I-129 approval document. If you are employing workers from South Africa, it's important to contact your Congressional representative’s office once the I-129 is approved and request a digital copy. 

Increasingly, a common reason for delays is past criminal history of the H2A worker. If your H2A worker has committed a crime or has been illegally present in the U.S., they can be ineligible for a work visa and must apply for a waiver of ineligibility. This can take an additional six months to process. Mitchell has fielded many calls regarding this delay, and a Congressional representative can do nothing to expedite this process.  So, it is important to know the background of your H2A workers.

Cultivate a relationship with workers through virtual interviews and ask their previous employers about their background. Farmers can also work closely with a reputable recruitment agent to avoid these setbacks. Then, when an H2A worker arrives in the U.S., they need a driver’s license. In Arkansas, Mitchell said Crawford’s office has worked with the DMV and the Arkansas State Police. Together they have made strides in efficiency for H2A workers to get their license and receive benefits. 

For more information, check out the H2A worker factsheet or contact the office of your Congressional representative. You can also read how Arkansas farmers are utilizing the H2A program in the upcoming Delta Farm Press story, When local labor is lacking: A farmer’s perspective on H2A. You don't want to miss this one. (Stay tuned for the story link coming Nov. 11.)