The U.S. wine industry is facing an imminent shortage of labor, particularly during harvest season. Throughout the United States, such work is mostly done by foreign workers. The H-2A visa program is commonly utilized by wineries to fill employment gaps, by hiring temporary, seasonal workers. H-2A visas are available only to eligible nationals from the countries designated by the Department of Homeland Security.
For a prospective foreign worker to qualify under the H-2A non-immigrant classification, the petitioning employer must satisfy all of the following conditions:
With respect to each covered worker, H-2A employers must guarantee employment payment for at least 75% of the workdays in the contract period, provide housing at no cost to a worker who is not reasonably able to return to their residence within the same day, and provide either three meals per day, at no more than a DOL-specified cost, or furnish free and convenient cooking and kitchen facilities where workers can prepare their own meals. In addition, employers must not seek repayment of any kind from workers for any costs associated with obtaining the H-2A labor certification, including the employer’s attorney, application, or recruitment costs.
Professional and Highly Skilled Workers
Oftentimes, wineries or vineyards seek to hire a foreign worker for a high-skilled, professional position, such as a winemaker, director of viticulture, farm manager, agricultural
director, etc. pursuant to the H-1B visa program. In order to sponsor a foreign national for an H-1B visa, the employer must demonstrate that:
With a statutory annual limit of 65,000 visa numbers available for new hires, and 20,000 additional visa numbers for advanced degree professionals who graduated from a U.S. university, demand for H-1B visas has historically exceeded the supply.
Beginning with fiscal year 2021, the USCIS will implement a new H-1B filing procedure. In particular, employers seeking to file an H-1B cap subject petition will be required to complete an online registration for each foreign worker. Petitioners selected in a computerized lottery will be afforded at least 90 days from the date of the selection notification to prepare and submit their H-1B petitions.
Initial H-1B petitions may be approved for up to three years, with subsequent extensions for up to another three years. Typically, the H-1B worker’s total period of admission may not exceed six years, with exceptions available to some H-1B holders, including beneficiaries of pending labor certification applications or employment-based immigrant petitions.
If the prospective employee was previously counted against the cap (i.e., if another employer already filed an H-1B petition for such employee and it was approved), the winery may be able to proceed with the filing of the full petition for such employee, avoiding the requirement to submit an online registration and participate in a lottery. The employee is not subject to the cap if he/she:
Other Visa Options
Because of the limited supply of the H-1B visas, wineries and vineyards that file new H-1B petitions for prospective employees should consider alternative options and assess the prospective employee’s eligibility for other visa classifications providing work authorization.
Canadians and Mexicans may qualify for TN visas if:
Employees from Chile and Singapore may qualify for an H-1B1 visa and Australians may qualify for an E-3 visa if:
If the winery or vineyard is owned by at least 50% of nationals of a country with which the United States has a bilateral investment treaty, an employee may be eligible for an E-1 or E-2 status if:
An employee may be eligible for an O-1 status if he or she can demonstrate extraordinary ability relating to the winery industry and seeks temporary employment in the United States in the area of extraordinary ability. Such employee would be required to provide evidence of at least three (3) of the following:
An employee may be eligible for an L-1 nonimmigrant visa status if such employee:
Trainee or Intern
A winery may offer training or internship to a college graduate or a current student studying winemaking, and the foreign national may be eligible a J-1 exchange visitor status as a trainee or intern.
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Information contained in this article is for general guidance only. It does not cover all the legal issues pertaining to various visa types. Every nonimmigrant visa has unique requirements and restrictions, and you should always consult with an immigration attorney about your specific question or situation. We can help you develop the best hiring strategy, based on the employee’s and employer’s qualifications, cost of immigration sponsorship, visa flexibility and suitability in light of the employer’s or employee’s future goals.
Should you seek to hire foreign workers for your winery or vineyard, please contact Bousquet Holstein Immigration Attorney, Anna Putintseva, to review your specific situation, address immigration issues, and discuss your legal needs.