Feb 1, 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.
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).
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 visa.
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.
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 anH-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: there simply is NO WAY for an undocumented worker to obtain legal status through employment.
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