Temporary Illinois H2A Petitions May Now Be Denied

 Posted on February 10, 2025 in Immigration

Immigration laws in the U.S. seem to be constantly changing, making it difficult for those seeking citizenship, work permits, family-based visas, and more to know how to proceed. New H-2 regulations went into effect on January 17, 2025, giving USCIS the authority to deny H-2A petitions filed on or after that date.

The official line is that these new regulations "streamline" the approval process and "strengthen worker protections" by imposing new consequences on companies that violate labor laws or charge prohibited fees. Those who filed the H-2A petition through the mail will have the petition accepted if received prior to January 17th and rejected if received on or after January 17th.  

United States employers who properly meet all the necessary requirements for bringing foreign nationals to the U.S. to fill temporary or seasonal jobs in the agriculture industry can do so under the H-2A program. A Form I-129 (Petition for a Nonimmigrant Worker) must be filed on behalf of a prospective worker.

If you have questions about Form I-129, speaking to a knowledgeable Bloomingdale, IL immigration attorney from Mevorah & Giglio Law Offices can be extremely helpful in determining your status and the necessary steps for H-2A status. Experience and knowledge about new immigration laws and procedures are necessary to ensure you get the help you need.

What Are the Qualifications for an H-2A Nonimmigrant Visa?

The employer must do the following under the H-2A program:

• Present employment that pertains to agriculture and is seasonal or temporary.
• United States workers who are qualified, willing, and able to perform agricultural work must not be available.   
• Employing H-2A workers must not negatively impact the working conditions and wages of U.S. workers in similar positions.
• The employer must submit a DOL temporary labor certification along with the H-2A petition.  

How Long Can Those with an H-2A Visa Remain in the U.S.?

The temporary labor certification will state the period of time the H-2A is authorized. The time can be extended in year-long increments; the maximum period an individual can remain in the U.S. under an H-2A classification is three years.

An individual who has been in the U.S. under H-2A status for three years must leave the United States for at least 60 days prior to seeking readmission under an H-2A visa. After being absent from the U.S. for the 60-day period, the H-2A worker is eligible for a new 3-year maximum stay.

Proof of absence from the U.S. can include arrival and departure records, tax returns, and records of employment outside the U.S. It is important for the H-2A worker to keep careful records of the time outside the U.S. to continue being eligible for H-2A status.

How New Immigration Laws and Procedures Could Hurt Illinois Farmers

In 2022, about 42 percent of all crop farm workers across the United States were undocumented. Overall, it is estimated that 70 percent of all farmworkers are immigrants, and at least 40 percent of those are undocumented. A 2020 survey found that the "typical" undocumented farmworker is a married, 41-year-old Hispanic male with children who were born in the U.S., although the number of women farmworkers continues to rise.

Undocumented farmworkers are an essential part of our nation’s workforce. This group of workers is often reluctant to file labor claims for fear of retaliation, including the threat of deportation, and may have difficulty finding other types of work with no valid work authorizations. To be clear, at least until now, those working under an H-2A petition are not considered undocumented but are considered to be only temporarily in the United States.  

Contact a DuPage County, IL Immigration Lawyer

If you need assistance with any immigration issues, it is important to speak to a Naperville, IL immigration attorney from Mevorah & Giglio Law Offices. Attorney Mevorah has been serving the needs of immigrants throughout Northern Illinois for more than 40 years. Call 630-932-9100 to schedule your free consultation.