The case of a agricultural worker with H-2A visaThe man, detained a few weeks ago by ICE after overstaying his permitted time in the country, focuses on a key question: What consequences do those who exceed the period authorized by their visa face, and what are their rights and obligations?
The lawyer for the Farm Workers Unit of Legal Aid of North CarolinaAaron Jacobson informed Enlace Latino NC that the most immediate risk is being arrested and deportee.
However, he clarified that Immigration and Customs Enforcement (ICE) does not actively seek out those who have simply overstayed their visa. work visa.
For her part, María Mejía, from the agricultural workers' organization El Futuro Es Nuestro (The Future Is Ours), told Enlace Latino NC that once the visa expires, the worker is left without protection.
“Basically, they have no immigration status,” he stated. He emphasized that the most important thing is that “everything that is done is done with the necessary information so that they don't end up harming themselves later.”
North Carolina is among the five states with the most H-2A workers of the country. In 2024, more than 32,000 positions Under this program, they were certified in the state. Most of the workers come from Mexico and work in crops such as tobacco, sweet potatoes, blueberries, blackberries, cucumbers, apples, and Christmas trees.
How many days does an H-2A visa worker have to leave the U.S. after their contract ends?
The H-2A visa depends on the employment contract and the employer who sponsored himWhen the contract ends, the worker is no longer authorized to work, but the law gives him time to organize his return.
According to United States Citizenship and Immigration Services (USCIS), the deadlines are as follows:
- 30 days after the contract ends. The worker retains their legal status, although they cannot work. This time serves to prepare the return trip or to initiate a change of immigration status.
- An additional 60 days if the worker stops working for their employer before the contract ends. whether due to resignation, dismissal, or another reason. During this period, the worker retains their status and may seek other authorized employment or prepare for their departure.
- An additional 60 days if the authorities cancel the authorization that allowed the worker to be hired. This happens, for example, when an employer commits a violation that invalidates their permit to have H-2A workers. The worker does not lose their status during those 60 days.
The two 60-day grace periods took effect in January 2025, with the new federal regulation that updated the H-2A program. After these periods expire, the worker loses their immigration status and becomes undocumented.
“You should always consult with a lawyer or a civil association,” Mejía stated, adding that the decision to stay, leave the contract, or change employers “should not be made without prior guidance.”
Related: Can I change H-2A jobs or resign before the contract ends?
What are the immigration penalties for overstaying an H-2A visa?
The penalties for overstaying your authorized time in the United States are not the same for everyone. They depend on how many extra days you stay. immigration law recognizes three different situations:
- Less than 180 days after the status expires. It does not create a ban on re-entering the country through another immigration route. The person can try to apply for another one. type of visa or procedure, although your application could be denied due to the precedent.
- More than 180 days, but less than a year. It triggers a three-year ban during which the person cannot return to the United States.
- More than a year. Activates a ten-year inadmissibility sanction.
In the case of agricultural workers with H-2A visaAttorney Jacobson clarified that “there is additional regulation” Even if the person stays for several weeks or two months longer (considered an irregular stay), this can affect future H-2A visa applications.
The United States could deny him a new visa for one or two years, although that period is shorter than the general three-year inadmissibility sanction. “I don’t know how strictly the U.S. consulate is applying it,” he acknowledged.
Why do many workers stay longer than allowed?
Both Jacobson and Mejía agree on why many workers decide to stay beyond the permitted time. According to their organizations' experiences, the reasons are due to irregular work situations, such as non-payment, debts to recruiters, and abusive working conditions.
“They may feel pressured to achieve their goal of coming here,” Mejía said.
“What we see most of all, probably, are workers subjected to labor trafficking,” Jacobson said.
In other words, there are cases where workers stay to recoup money and cover the debts they incurred to come here.
According to the lawyer, some workers arrive in the country after paying recruitment quotas between $4,000 and $8,000 for jobs presented to them as a unique opportunity.
But they end up earning wages far below what was promised. That difference, he said, pushes them to stay in order to “recover what they lost by being exploited.”
Jacobson said this situation is more frequently observed in the eastern part of the state, in crops such as sweet potatoes, blueberries, blackberries, and cucumbers, which are usually paid per unit harvested rather than per hour worked.
This facilitates labor exploitation, even though the law requires a minimum hourly wage. “If the blueberries are wet or not yet ripe, you can’t earn much,” he stated.
>>> For more information on the rights and obligations of the H-2A Visa program, please consult: Here's what you need to know to travel to North Carolina with an H-2A visa for agricultural workers
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