Should I Use an Attorney to Apply for the H-2A Visa Program?
Pros and cons for you to make an informed choice
If you own a U.S. farm or ag business, you know the farm labor gap is bigger than ever. And, while the H-2A Visa Program provides a critical source of ag labor, applying for the H-2A program is no easy task. That’s why many H-2A employers look to attorneys or H-2A agencies for assistance.
You have options when it comes to applying for the H-2A Visa Program. According to 2020 data from the USDA Economic Research Service (the latest year available), only 19% of ag businesses applied through attorneys, 15% chose to apply for the H-2A Program on their own, and 45% used the services of an H-2A agency.
Each option has its own benefits and risks. Ultimately, your decision comes down to balancing your needs, risk tolerance, and cost. This blog focuses on the pros and cons you should be aware of if you choose to hire an attorney to apply for the H-2A program.
What are the pros for using an attorney to apply for the H-2A Visa Program?
Given that the H-2A Visa Program is governed by immigration and labor law, and the significant amount of paperwork and documents involved, enlisting the services of an attorney to apply for the H-2A Program makes some sense.
Here are the key benefits of having an attorney who specializes in H-2A submit your H-2A Visa Program application for you.
Legal protection and representation—An H-2A attorney can:
Represent you to the Department of Labor (DOL) and the U.S. Citizenship and Immigration Service (USCIS) through the application process
Interpret legislation
Know how to respond effectively to audits, Requests for Evidence (RFEs), and investigations
Guide you on what to say and what not to say
Support if you experience pushback—An H-2A attorney can advise you and craft responses in the event your receive:
RFEs
Denials
Lower risk—An H-2A attorney:
Understands what triggers audits, RFEs, delays, and denials
Understands compliance requirements and can help you avoid costly surprises and reduce legal exposure
Knows the H-2A Visa Program process timeline and deadlines to help keep you on track
Support for complex operations—An H-2A attorney may be helpful in situations where you have:
Multi-locations farms
Multiple and/or large crews across multiple states
Staggered crews
Mixed pay structures (hourly and piece rate)
Previously been audited or fined
What are the cons for using an attorney to apply for the H-2A Visa Program?
While using an attorney to submit your H-2A Visa Program application helps reduce your risk and protects you in the event you’re audited, there are some important things to know before deciding if that’s the right choice for you.
Here are some of the downsides, gaps, and liabilities you may face when hiring an H-2A attorney:
Higher upfront costs—As a general rule, attorneys typically charge more than H-2A agencies. In addition to a hefty retainer, attorneys get paid by the hour, which means every question costs you. The more help you need, the higher your cost.
Lack of availability—Attorneys don’t typically just focus on H-2A and have various other priorities, such as appearing in court, so they may not be able to provide answers or support when you need help
Answers vs. education—While attorneys will answer your questions, they’re less likely to proactively educate you on all the important details of the H-2A program
More legal compliance than operational compliance—Attorneys focus more on legal compliance, which primarily involves the statutory and regulatory requirements that govern the H-2A Visa Program. Most don’t tend to help H-2A employers when it comes to the day-to-day actions as they implement the H-2A Program within their operations. For example, preparing for housing inspections or maintaining accurate pay slips.
Many don’t source workers—While some attorneys partner with recruiters, the majority focus primarily on the legal and paperwork-side of the H-2A Visa Program, leaving you to find workers on your own
Limited worker support—If, by chance, the attorney partners with recruiters, most still don’t help with logistics, such as consulate visits, or travel arrangements to get workers to America
Limited employer support—Attorneys don’t typically help H-2A employers past the point when workers arrive. For example, resolving worker conflict or helping you with getting reliable workers to return.
Get the best of both worlds with USA Farm Labor
When you trust USA Farm Labor to submit your H-2A Program application, you’re supported across all aspects of the H-2A Visa Program—legal, operational, educational, and more.
Get in-depth education and answers when you need them—From your Onboarding Specialist, to your dedicated Case Manager and Worker Placement Coordinator, you’ll learn everything you need to know about the H-2A Visa Program and get quick answers to your questions
Access resumes and references for 6,000-plus verified workers—Thanks to our global network of recruiters who vet every worker in our proprietary database and our partnership with USA Truck Labor, you’ll easily find workers with the skills you need. This includes advanced skills, such as operating and maintaining ag equipment.
Get operational compliance support—From housing and compliance checklists to templates for pay slips, you’ll get the help you need to follow H-2A best practices in your daily operations
Receive robust worker support—Your Worker Placement Coordinator assists you with everything from consulate visits and workers’ travel arrangements to helping you prepare for your workers’ arrival
Get support for you and your workers all season long—Your Worker Placement Coordinator reaches out throughout your season to ensure everything is running smoothly, plus helps resolve any concerns or issues, such as worker conflicts
Plus, our partnership with one of the top H-2A attorneys in the industry, as well as our Strategic Compliance Alliance which includes a Wage and Hour investigator, give you access to additional services (cost not included in our H-2A fees) that provide legal representation as needed as well as assistance with preparing for an audit.
