The following is an introduction to the H-2A program for temporary agricultural workers.The introduction is an excerpt from Congressional Research Service. Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues 12/13/12 report.
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.

Continue reading Introduction to H-2A temporary agricultural worker program

In December the Congressional Research Service issued a report on two key temporary worker programs, H-2A and H-2B. This posting excerpts from the report’s introductory overview of both programs. Later postings will address the programs in greater detail. These postings will bring you up to speed on the basics of temporary foreign worker programs in the U.S.
There are many temporary work visa programs. A comprehensive list of them in contain in a 2009 report by the Migration Policy Institute, “Aligning Temporary Immigration Visas with U.S. market needs.” In 2008, some 262,000 temporary visas were issues for high skilled labor, and 158,000 such visas for low skilled labor, almost entirely H-2A and H-2B. In addition there were 168,000 “mixed skilled” temporary visas issued.
The report excerpted below and in later postings is: Congressional Research Service. Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues. 12/13/12.
The [Immigration and Nationality Act of 1952], as originally enacted, authorized an H-2 nonimmigrant visa category for foreign agricultural and nonagricultural workers who were coming temporarily to the United States to perform temporary services (other than services of an exceptional nature requiring distinguished merit and ability) or labor. The 1986 Immigration Reform and Control Act (IRCA) amended the INA to subdivide the H-2 program into the current H-2A agricultural worker program and H-2B nonagricultural worker program and to detail the admissions process for H-2A workers. The H2A and H-2B programs are administered by the Employment and Training Administration (ETA) of the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (DHS).
The H-2A and H-2B programs are administered by DOL and DHS, with DOL making a determination on the labor certification application and DHS adjudicating the non-immigrant visa petition.
While there are many differences between the H-2A agricultural worker program and the H-2B nonagricultural worker program, the process of importing workers under either program entails the same steps. Employers who want to hire workers through either program must first apply to DOL for labor certification, as discussed in the next section. After receiving labor certification, a prospective H-2A or H-2B employer can submit an application, known as a petition, to DHS to bring in foreign workers. If the application is approved, foreign workers who are abroad can then
go to a U.S. embassy or consulate to apply for an H-2A or H-2B nonimmigrant visa from the Department of State (DOS). If the visa application is approved, the worker is issued a visa that he or she can use to apply for admission to the United States at a port of entry.
In both the H-2A and H-2B programs, there is a tension between providing protections to U.S. and foreign workers on the one hand and making the programs responsive to legitimate employer needs on the other. While these competing interests are longstanding, the current environment— with relatively high levels of U.S. unemployment; discussions about expanding the E-Verify electronic employment eligibility verification system (as discussed below); and concerns about
shortages of legal workers, especially in agriculture—has heightened the tensions.
Temporary Labor Certification
DOL’s ETA is responsible for administering the labor certification process under the H-2A and H2B programs. Under both programs, employers submit applications in which they request the certification of a particular number of positions.
INA provisions on the admission of H-2A workers state that an H-2A petition cannot be approved unless the petitioner has applied to DOL for certification that
(1) there are not sufficient workers who are able, willing, qualified … and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (2) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. [INA §218(a)(1)(A), (B)]
There is no equivalent statutory labor certification requirement for the H-2B program. The INA, however, does contain some related language. For example, it defines an H-2B alien, in relevant part, as an alien “who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” [INA §101(a)(15)(H)(ii)(b)] The H-2B labor certification requirement instead appears in DHS regulations. These regulations state:
“The petitioner may not file an H-2B petition unless the United States petitioner has applied for a labor certification with the Secretary of Labor … and has obtained a favorable labor certification determination …[8 C.F.R. §214.2(h)(6)(iii)(C)].
The H-2A and H-2B labor certification requirements are intended to provide job, wage, and working conditions protections to U.S. workers. They are implemented in both programs through a multifaceted labor certification process that requires prospective H-2A and H-2B employers to conduct recruitment for U.S. workers and offer a minimum level of wages and benefits that varies by program.

The Texas Immigration Solution is a self-described conservative organization focused on immigration reform. It describes its mission to “enact conservative, market-based immigration reform into law,” and to “provide a voice for conservative job creators by educating the broader community on the urgent need for comprehensive, conservative, market-oriented reforms of the immigration process.”
Its solution is guest worker program-based for both skilled and unskilled workers, with conservative approaches to immigration in general:
Secure Our Borders – We demand the application of effective, practical and reasonable measures to secure our borders and to bring safety and security for all Americans along the border and throughout the nation.
Modernize the United States Social Security Card – We support the improvement of our 1936 Social Security card to use contemporary anti-counterfeit technology. The social security card will not be considered a National ID card for U.S. citizens.
Birthright Citizenship – We call on the Legislative, Executive, and Judicial branches of the United States to clarify Section 1 of the 14th amendment to limit citizenship by birth to those born to a citizen of the United States with no exceptions.
Create an Effective and Efficient Temporary Worker Program – A national Temporary Worker Program should be implemented to bring skilled and unskilled workers into the United States for temporary periods of time when no U.S. workers are currently available. The program should also require:
Self-funding through participation fees and fines;
Applicants must pass a full criminal background check;
Applicants with prior immigration violations would only qualify for the program if they paid the appropriate fines;
Applicants and/or Employers must prove that they can afford and/or secure private health insurance;
Applicants must waive any and all rights to apply for financial assistance from any public entitlement programs;
Applicant must show a proficiency in the English language and complete an American civic class;
Temporary Workers would only be able to work for employers that deduct and match payroll taxes;
All participants would be issued an individual Temporary-Worker Biometric Identification Card that tracks all address changes and both civil and criminal court appearances as a defendant.

Colorado — with an estimated 180,000 undocumented immigrants — has created a compact on immigration, following Utah’s lead of a few years ago, which itself was in response to Arizona’s draconian legislation. According to the Greeley Tribune, the Colorado Compact arose out of 200 meetings throughout the state. The need for immigrant labor is most acute among the state’s farms, which “like many others nationally, have lost workers to the better-paying jobs of the oil and gas field, while also struggling to find local residents willing to do agriculture’s physical labor….Signers of the Colorado Compact span faith organizations, law enforcement agencies, the business community, immigrant-rights advocates and institutions of higher education, as well as agricultural interests.”
The Colorado Compact:
The Colorado Compact is an effort to convene and promote a reasonable conversation on immigration in Colorado that could lead to real and lasting federal reform. The Compact brings together leaders and community members of diverse backgrounds and politics who are committed to fostering a more rational and collaborative approach to immigration policy than exists today. We believe that the growing consequences of a broken immigration system must be addressed in a bipartisan effort that considers the principles outlined in this compact.
FEDERAL RESPONSIBILITY
Immigration policy is a federal issue between the U.S. government and other countries. We urge the Colorado congressional delegation to work to enact immigration policy at the federal level that improves our immigration system, keeps our communities safe, and protects our borders.
STRENGTHENING OUR ECONOMY
Colorado is best served by a free-market philosophy that maximizes individual freedom and opportunity. Our immigration system must be flexible enough to address the needs of businesses while protecting the interests of workers. This includes a visa system that is both responsive and effective at meeting the demands of our economy. It should also acknowledge the beneficial economic contributions immigrants make as workers, taxpayers, and consumers.
ENSURING OUR NATIONAL SECURITY
We believe that maintaining the safety and security of the United States is an utmost priority. Our immigration system must ensure the protection of our communities and national borders.
FAMILY
Strong families are critical to developing successful individuals and cohesive communities. Our immigration policies, where possible, should prioritize keeping close families together in order to ensure the most supportive home environments for all children across our state.
EFFECTIVE ENFORCEMENT
We support a law enforcement strategy that focuses on public safety, targets serious crime, and safeguards witnesses and victims. We further urge a reasonable and predictable regulatory environment that considers the interests of, and unintended consequences to businesses, workers, and consumers. Furthermore, the broader reform effort should eventually include a way to accurately, reliably, and affordably determine who is permitted to work, ensuring an adequate labor force for a growing economy.
A COMMONSENSE APPROACH
Immigrants are part of our communities across Colorado. We must adopt a commonsense approach to this reality that reflects our values and recognizes the critical role immigration has played in our nation’s history and economy. Our immigration policies must provide a sensible path forward for immigrants who are here without legal status, are of good character, pay taxes, and are committed to becoming fully participating members of our society and culture.