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Introduction to H-2A temporary agricultural worker program

The following is an introduction to the H-2A program for temporary agricultural workers. The introduction is drawn mainly from Congressional Research Service. Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues.


Introduction

Foreign agricultural workers have been a recent focus of attention in Congress, with the immigration subcommittees of both the House and the Senate Judiciary Committees holding related hearings in 2011 and 2012. A number of legislative proposals on agricultural guest workers have likewise been put forward in the 112th Congress. Some bills would amend INA provisions on the H-2A visa, while others would establish new temporary agricultural worker programs as alternatives to the H-2A program. Still other proposals would couple a legalization program for agricultural workers either with H-2A reform, as in the traditional AgJOBS formulation, or with other changes to current law on agricultural labor.

Of the 79,000 certified H-2A positions in 2010, 40% were in the top five states (in order of size): North Carolina, Louisiana, Georgia, Kentucky, Florida. [Table A-1, pg. 28]

How it works

The H-2A program allows for the temporary admission of foreign workers to the United States to perform agricultural labor or services of a seasonal or temporary nature, provided that U.S. workers are not available. In general, for purposes of the H-2A program, work is of a temporary nature where the employer’s need for the worker will last no longer than one year. Thus, an approved H-2A visa petition is generally valid for an initial period of up to one year. An employer can apply to extend an H-2A worker’s stay in increments of up to one year, but an alien’s total
period of stay as an H-2A worker may not exceed three consecutive years. An alien who has spent three years in the United States in H-2A status may not seek an extension of stay or be readmitted to the United States as an H-2A worker until he or she has been outside the country for three months.

Prospective H-2A employers are required to submit a job order to the state workforce agency (SWA) serving the area of intended employment before filing a
labor certification application. Once reviewed and cleared by the SWA, the job order becomes the basis for recruiting U.S. workers to fill the employer’s job openings. The employer can then file the labor certification application with DOL. In the DOL application the employer must first apply to DOL for a certification that (1) there are not sufficient U.S. workers who are qualified and available to perform the work; and (2) the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers who are similarly employed.

Prospective H-2A employers must attempt to recruit U.S. workers and must cooperate with DOL-funded state employment service agencies (also known as state workforce agencies) in local, intrastate, and interstate recruitment efforts. Under the H-2A program’s fifty percent rule, employers are required to hire any qualified U.S. worker who applies for a position during the first half of the work contract under which the H-2A workers who are in the job are employed.


Among the other H-2A labor certification requirements, employers must provide a “three-fourths guarantee”; that is, they must guarantee to offer workers employment for at least three-fourths of the contract period. As discussed below, H-2A employers must pay their H-2A workers and similarly employed U.S. workers the highest of several wage rates and must also provide workers with housing, transportation, and other benefits, including workers’ compensation insurance. No
health insurance coverage is required. (H-2A workers, like non-immigrants generally, are not eligible for federally funded public assistance, with the
exception of Medicaid emergency services. )

Some 86,014 H-2A positions were certified for FY2009 and 79,011 were certified for FY2010. Employers in North Carolina received more H-2A certifications than
employers in any other state in both years. Other top states, in terms of number of H-2A positions certified, were Florida, Georgia, Kentucky, and Louisiana. [Appendix A of this report shows certifications by state.]

The H-2A program is not subject to a statutory numerical limit and has grown significantly over the last 20 years. One way to measure the H-2A program’s growth is to consider changes in the number of H-2A visas issued annually by DOS. There is no precise measure available of the number of aliens granted H-2A status in any given year. While visa data provide an approximation, these data are subject to limitations, among them that not all aliens who are issued visas necessarily use them to enter the United States.

The number of H-2A visas issued increased more than fourfold between FY1992 and FY2000, when about 30,000 visas were issued. H-2A visa issuances remained at about 30,000 annually until FY2005 and then started to increase, peaking at more
than 64,000 FY2008. The number of H-2A visas issued subsequently declined, totaling some 55,000 in FY2011, according to preliminary DOS data.

Despite its growth since the early 1990s, the H-2A program remains quite small relative to total hired farm employment. This relatively small size has become an issue in the debate about the program. Critics of the H-2A program cite the low levels of participation as evidence of the program’s inadequacy to meet the needs of U.S. agricultural employers. Others, however, attribute the program’s low utilization to the availability of unauthorized workers, who are willing to work for lower wages than legal workers.

Regulatory Changes

In August 2007, in the aftermath of unsuccessful congressional efforts to enact comprehensive immigration legislation with guest worker provisions, the George W. Bush Administration announced that it would streamline existing guest worker programs within current law. In December 2008, DHS and DOL published final rules to significantly amend their respective H2A regulations, which went into effect on January 17, 2009. The Obama Administration retained the 2008 DHS rule on the H-2A visa. It sought to review the 2008 DOL rule, and unsuccessfully attempted to suspend it in 2009. DOL subsequently issued a new final H-2A rule, which became
effective on March 15, 2010, to replace the 2008 final rule. [U.S. Department of Labor, Employment and Training Administration and Wage and Hour Division, “Temporary Agricultural Employment of H-2A Aliens in the United States,” 75 Federal Register 6884-6995, February 12, 2010]

Wage and other enforcement provisions

The 2010 DOL rule amended existing regulations to require H-2A employers to pay their workers the highest of four wage rates: the federal or applicable state minimum wage, the prevailing wage rate, the adverse effect wage rate (AEWR), or the agreed-upon collective bargaining wage. In addition, the ETA regulations in the 2010 DOL rule included a system of post-certification audits of H-2A employer applications, which were a revised version of the system in the 2008 rule, and expanded DOL’s authority to bar employers from participating in the program (known as debarment authority).

Wage and Hour Division regulations in the 2010 DOL H-2A final rule addressed enforcement of contractual obligations under the H-2A program. These regulations revised provisions in the 2008 final rule. Among the changes, the 2010 rule provided WHD with independent authority to debar employers for “substantial violations” and increased the civil money penalties for specified violations.

AgJOBS

Over the years, both growers and labor advocates have criticized the H-2A program. Growers complain that the program is administratively cumbersome, expensive, and ineffective in meeting their labor needs. Labor advocates argue that the program provides too few protections for workers.

In the late 1990s, representatives of growers and workers reached agreement on legislation to address the foreign agricultural worker issue. The legislation became known as the Agricultural Job Opportunities, Benefits, and Security Act, or AgJOBS. It combined provisions to reform the H-2A program with a program to legalize the status of farm workers though a two-stage process.

During the 106th Congress, AgJOBs legislation became the basis of a bipartisan compromise on foreign agricultural workers, but that compromise fell apart at the end of the 2000s. (Two similar AgJOBs bills (S. 1814 and H.R. 4056) were introduced in the 106th Congress.) More recently, AgJOBS titles were included in comprehensive immigration reform bills considered in the 109th and 110th Congresses. None of these bills were enacted.


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