As discussed in our previous newsletter “Best Practices: Part 1, Screening H-2A Applicants in the U.S.”, H-2A workers currently working in the U.S. may be seeking better options and start applying for a job directly to H-2A employers with higher AEWR.
As an H-2A employer, you may wonder if it’s possible to petition for them to work for you.
Remember that first, you must ensure that you do not have rejected any qualified U.S. applicants who are able, willing, and available to perform the job listed in the H-2A job order.
If you are willing to hire an H-2A worker who is currently working for another employer, the following criteria apply:
- The employer must know that the worker will be transferred to a new employer and must agree with it, as he will need to provide documentation to prove the current worker’s H-2A visa status. (e.g., Labor Certification and USCIS approval notice)
- A transfer application will need to be filed with USCIS along with the corresponding fee.
- Finally, only employers who are part of the E-verify program can put a transferred requested worker to work as soon as the petitioner employer receives the receipt of the transfer application; otherwise they must wait until the petition is approved by USCIS.
- The new employer would be responsible as an employer for the worker’s outbound travel and subsistence, on the return to their place of origin.
If a transfer is not possible and the worker decides to abandon their job, they would have to return to their country of origin in the next 10 days. The worker will be able to be petitioned as a regular H-2A worker again.
The worker must remain outside of the U.S. for at least 3 months if they have been previously continuously hired under H-2A for a period of 3 years.
For questions about H-2A program compliance or Western Growers H-2A Services, please contact Jason Resnick ([email protected]).