Can winery workers get a visa ?
By Christopher Kerosky, Esq.
This article was published in this
month’s Immigration Stories column in the
Sonoma County Gazette: https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-can-winery-workers-get-a-visa-february-2019
All of us see the
workers in the fields tending the vineyards throughout the year as we drive our
beautiful Sonoma County roads. You may
wonder: can a person working in those fields get a green card by way of their
job at the winery? The answer might surprise you.
Yes,
if you are a winemaker.
The federal government has a special visa
for temporary foreign professionals hired by a U.S. employer, known as the
H-1b. The H-1B visa is frequently used to hire IT professionals in Silicon
Valley or elsewhere; it also works for winemakers (and their assistant
winemakers).
The application period for the H-1b visa
starts on April 1st. Because
there is a limited annual quota (65,000) of H-1 visas for the entire country
and because there is high demand for these visas, the allotment of these visas has
been used up immediately after April 1st
for the last 5 years. Last year, over
200,000 people applied in the first few days of April. The government has to hold a lottery every
year to decide which 65,000 envelopes they were going to open; the other
135,000 applications were sent back.
Even for the highly-paid and highly
educated, the visa system is basically broken.
Employment at a winery can be a basis for
permanent residence for enologists, if they prove that no qualified American
wants that job. There is a complicated
process known as PERM, whereby the winery must advertise and recruit for the
position and prove to the government that no qualified U.S. citizen responded
to the job opportunity. An H-1b visa can
allow a winemaking professional to stay and work legally in this country while
they apply for a green card.
But persons are eligible for an H-1b only for
"specialty occupations”. Generally
speaking, that means jobs requiring a college degree. No degree, no H-1b visa.
Maybe,
if you’re an intern or trainee.
There are certain internship opportunities
for foreign workers. The requirements
are fairly stringent but if a winery offers training to a college graduate or a
current student studying winemaking, the foreign national may be eligible for
what is known as a J-1 visas.
The J-1 internship or trainee visa application
must be filed by an employer with an approved training program in winemaking or
related skills. The visas are typically
valid for 6-18 months only. An
independent agency – paid by the applicant-- checks to make sure the training
program is legitimate and processes the paperwork.
The visa is not available for what the
government considers “unskilled workers” and persons here without documents are
ineligible.
No, if you are a field worker.
What about all the
other winery workers like those who tend the vineyards or pick the grapes? In short, no path to a green card exists for
them and temporary visas are extremely limited.
There are some
field workers who can qualify for an agricultural worker visa known as an
H-2a. But these visas are granted to
groups of workers after an employer has shown that there is shortage of farm
workers available in their geographic area.
There is a rather long, cumbersome process to apply for the visa,
involving proving a labor shortage in a procedure with the U.S. Department of
Labor. If eligibility is shown, the
worker is granted a visa for one year, and the employer must renew the visa
every year by showing a continuing labor need.
Most importantly,
those farm workers who are already here illegally need not apply. They are not eligible.
Frequently in my
work as an immigration lawyer, I have to inform willing employers of this
little-known fact about our immigration laws: there simply is no way for an
undocumented worker to obtain legal status through employment.
****************************************************************
CHRISTOPHER A.
KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration
law for over 25 years. He graduated
from University of California, Berkeley Law School and was a former counsel for
the U.S. Department of Justice in Washington D.C.
Mr. Kerosky has
been recognized as one of the top lawyers in Northern California for 10 years
by “Super Lawyers” Magazine. See www.superlawyers.com.
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WARNING: The above is a
summary discussing legal issues. It is not intended to be a substitute for
legal advice. We recommend that you get competent legal advice specific to your
case.