Immigration Basics
Definition of Immigrant vs. Non-Immigrant
An immigrant is a person who was not born a U.S. citizen but now has the right to live and work here.
This person is a Lawful Permanent Resident who has the right to permanently live and work in the
United States. This person possesses a form I-551—a Resident Alien Card (called a green card). A more
detailed explanation is available at www.uscis.gov.
A person who is not an immigrant can apply to work in the United States for a limited period of time by
obtaining a non-immigrant visa. As a general rule, it is easier to obtain a non-immigrant visa than an
immigrant visa; therefore, the normal strategy for obtaining work is to obtain a non-immigrant work
visa first and then attempt to convert to immigrant status.
Becoming an Immigrant
There are several ways to become an immigrant or legal permanent resident. The four general
categories or methods of gaining resident status are as follows:
1)
2)
3)
4)
Through a family member;
Through your employer;
By making a substantial investment; and,
Through some “other” means, which are nine highly specific immigration routes that include
asylum, the immigration lottery, adoption, the Violence Against Women’s Act, and countryspecific programs for Cuba, Haiti, Nicaragua, Syria, Vietnam, Laos, and Cambodia.
Non-Immigrant Business Visas
Non-immigrant visas allow an alien to enter the country for a temporary period of time to perform the
activities contemplated by the particular visa category. The primary non-immigrant work visas are the
B-1, E-1, E-2, H-1B, H-2A, H-2B, L-1, O-1, and TN visas. Of these only the H-1B, H-2A, and H-2B are of
possible use to an agricultural employer.
H-1B Skilled Worker: An individual is sought for the performance of a specialty occupation for which
there are no locally qualified individuals. The foreign worker must have a four-year degree or its
equivalent and a state license to practice, if required. The family of the worker receives an H-4 visa.
Only 65,000 H-1B visas are given each year. The work is contemplated to take more than one year.
H-2A Agricultural Worker: H-2A is the principal program authorizing a farmer to recruit and temporarily
employ foreign workers. Although this program can provide employers with a legal and stable
workforce, it is an extremely challenging program to undertake. However, the number of Washington
employers using the H-2A program has grown dramatically in the past several years.
Updated 3/16/2015
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www.wsfb.com
975 Carpenter Road NE, Suite 301
Lacey, WA 98516
(360) 357-9975
The H-2A program requires that employers attempt to recruit local workers. If there are insufficient
local workers, employers are provided with a certification and ultimately guest worker visas to bring in
foreign workers. The program requires the employer to pay the roundtrip door-to-door transportation
for the worker, provide free housing, and guarantee an hourly wage – to all workers who perform a job
listed in the H-2A application – that exceeds the Washington minimum wage.
The program typically costs $1,000 or more per worker to fulfill all of the application processes,
including the roundtrip transportation requirement. After that, employers must factor in a cost for
housing and transportation from the housing area to the place of employment. The most difficult
hurdle for employers is the housing requirement.
Here is a summary of the H-2A program regulations:

Recruitment: Before granting an application, the U.S. Department of Labor must find that there
are not sufficient U.S. workers who are able, willing, and qualified and who will be available at
the time and place needed to perform the work. To show this, an application must include a job
offer which describes material terms and conditions of employment to be offered to U.S.
workers and H-2A workers. Beginning 60 days prior to the date that the employer designates as
his/her “date of need,” the employer begins working with the state workforce agency to
identify locally available workers. In addition to working with ESD, farmers must also make
“positive recruitment efforts,” which include contacting former workers and placing
advertisements in major newspapers. This positive recruitment must continue until the H-2A
workers depart for the employer’s place of employment.
The employer must actively recruit U.S. workers until the H-2A workers depart for the place of
employment. The “50% rule,” which applies to many farmers, requires them to hire qualified
U.S. workers until 50 percent of the work contract period has expired. The “50 percent rule”
does not cover an employer who did not use more than 500 man-days of agricultural labor in
any quarter of the prior calendar year, who is not a member of an agricultural association that
has applied for an H-2A certificate, and who is not otherwise associated with other employers
who are applying for an H-2A certificate.
Although recruiting continues for a major part of the season, at a point 30 days prior to the
“date of need,” the U.S. Department of Labor (DOL) will decide whether to grant the H-2A
application and, if granted, for how many workers.

Wages: Each year, DOL sets a minimum wage, called the Adverse Effect Wage Rate (AEWR),
that must be paid to all workers – foreign or domestic – who work at a location listed in the H2A application and at a job specified in that application. This sets the minimum wage. If a state
minimum wage or a locally prevailing wage is higher, the higher wage must be paid.
Updated 3/16/2015
© Washington Farm Bureau
www.wsfb.com
975 Carpenter Road NE, Suite 301
Lacey, WA 98516
(360) 357-9975

Three-Fourths Guarantee: The employer must offer work to the employee on at least threefourths of the contract workdays specified in the H-2A application. Abandonment of
employment, termination for cause, or certain employer hardships would relieve the employer
of the three-fourths guarantee.

Recordkeeping: The employer must keep records of workers’ hours, wages, deductions and the
reason for offering less than three-fourths of workdays. Records are to be kept for three years.
Wage statements must be provided showing total earnings, rate of pay, hours of employment
offered, hours worked, deductions and piece-rate units. Wages must be paid at least twice a
month or in accordance with the prevailing practice, whichever is more frequent.

Housing: Housing must be provided free of charge to workers who are unable to return to their
residence within the same day. The housing must meet the OSHA standards for housing of
migrant workers. Family housing must be provided upon request, when it is the prevailing
practice in your area. (A prevailing practice is one engaged in by at least 50 percent of the
employers in the occupation in your area, if this 50 percent or more of employers also employ
at least 50 percent of U.S. workers in the occupation in your area).

Transportation: Transportation must be provided from the worker’s home to your farm. In
addition, transportation from the living quarters to and from the place of employment must be
provided.
H-2B Seasonal Non-Agricultural Worker: This non-immigrant worker category is available to general
labor workers who are needed for any one employer for less than one year, generally 10 months or
less. H-2B visas use a similar process to the H-2A to document a need for workers and an inability to
recruit local workers. In order to document the need, one of these situations must exist:
1) One-Time Occurrence: In this case, a temporary event of short duration creates the need for
workers. The best example is large construction project.
2) Seasonal or Peak Period: This case allows employers to supplement permanent workers for a
seasonal period. Many agricultural positions that do not fall within the H-2A definition of
“farm” labor can utilize the H-2B program. The labor is tied to an event, pattern, or season of
the year. Examples include Christmas wreath makers, tree planters, landscapers (spring and
summer peak), agricultural packers, deck hands for fishing vessels, other seafood packers or
handlers, etc.
3) Intermittent Need: This is a cross between a regularly occurring seasonal need and a one-time
occurrence. Examples could include a fence erector, horticultural workers, meat cutters,
wildlife control agents and other intermittent activities.
Updated 3/16/2015
© Washington Farm Bureau
www.wsfb.com
975 Carpenter Road NE, Suite 301
Lacey, WA 98516
(360) 357-9975