H-2A Usage Approaches 200,000 Workers
Labor has always been a critical input for American agriculture. While some sectors have become highly mechanized, others such as fruits, vegetables, dairy, nursery and greenhouse continue to use a great deal of hand labor.
With local labor increasingly hard to find, many producers use the H-2A temporary visa program as a way to obtain reliable, legal workers for their seasonal labor needs.
Since 2006, the number of national H-2A worker certifications has more than doubled. However, the system has struggled to keep up with the increase in applications and provide a timely, reliable option for farmers.
While we have seen a significant increase in H-2A participation nationally (Figure 1), the number of H-2A workers in the Northeast has been increasingly more variable. Still, it has increased from roughly 6,000 workers in 2010-2012, to more than 8,000 workers last year (Figure 2), as local labor markets have tightened.
Another interesting finding from the data is that farms of all sizes are using the program. In Figure 3, note the relatively low number of H-2A workers per farm. While there are a handful of large H-2A employers in most states, the typical farm is only getting a limited number of workers.
The H-2A program was instituted to meet a need for seasonal and temporary labor in the U.S. by providing foreign nationals legal permission to come to the United States and work in specified jobs for a limited period of time, after which they return to their home countries. As stated, the program is limited to “seasonal” or “temporary” work, making it unavailable to year-round employers such as dairy farms, which have no legal visa programs availableto them.¹ The program is divided into H-2A for agriculture and H-2B for other occupations.² The H-2B program has been limited to 66,000 in recent years, a cap that is typically reached within the first half of the federal fiscal year. In July, the Department of Homeland Security announced a one-time increase of up to 15,000 additional visas for FY 2017. The H-2A program has no cap.
The programs are managed by three federal agencies: the Department of Homeland Security (DHS), the Department of Labor (DOL) and the Department of State (DOS). The DHS U.S. Citizenship and Immigration Services (USCIS) adjudicates the H-2 petitions; the DOL issues the H-2 labor certifications and oversees compliance with labor laws and the DOS issues visas to workers at consulates overseas.³ Additionally, state departments of labor are tasked with making on-farm inspections. With so many departments and agencies involved, it is no surprise that H-2A employers are among the most heavily scrutinized and monitored employers in the country. Additionally, the opportunities for miscommunication and delays are significant.
H-2A employers must comply with all federal and state labor regulations, and workers are covered by most U.S. labor laws, including the Wage and Hour Act, Workers’ Compensation and the Affordable Care Act. Employers must first recruit employees within the U.S. and preferentially hire U.S. citizens. H-2A workers must be paid the higher of the federal or state minimum wage, the applicable prevailing hourly wage rate or the applicable adverse effect wage rate (AEWR) for their state. For New York, the 2016 average AEWR wage rate ranged from $10-14 per hour, depending on job description. Any local hires doing the same job as H-2A workers must be paid at least that rate as well. On top of the AEWR, employers must pay for transportation to and from the worker’s home country and provide housing free of charge (which must meet specific minimum standards).
With all these expenses, the H-2A program is clearly not a cheap way out of one’s labor problems. However, many H-2A employers swear by the program, stating that the increased costs and headaches are worth it to get a reliable, high-quality, legal workforce. Many H-2A employers report that a significant number of the same employees return year after year. The fact that participation in the program has grown so much at the national level – despite significant regulatory hurdles and high costs – is a testament to the tremendous challenges farmers face in finding legal and reliable workers.
However, the program continues to have challenges. For the last two years, H-2A employers have reported significant and unexpected delays in the processing of labor certifications, visa petitions and interviews for final border crossing, leading to the delayed arrival of workers on farms.
The DOL is required by statute to respond to completed applications no later than 30 days prior to the farmer’s date of need, a rule which is reportedly not being met in some cases. This can be highly disruptive to growers who count on these workers to perform time-specific tasks such as planting, pruning, harvesting and other critical activities that cannot wait for a paperwork delay.
Going forward, it is imperative that the nation’s temporary visa programs are improved if we are to maintain American agriculture as an ongoing source for abundant, affordable, safe and domestically-produced farm products.
1 Farm Credit East and other farm organizations have advocated for allowing such year-round employers to be fully eligible for the H-2A program.
2 Some agricultural enterprises use the H-2B program as well for workers in “non-ag” positions, such as processing and shipping.
3 U.S. Department of Homeland Security, “H-2A Temporary Agricultural Worker Program”.