Volume 18, Issue 1
Written by L.J. D’Arrigo, Harris Beach PLLC
It’s hard to believe, but it is already time to start planning for your 2024 Spring labor needs. As we know, finding, hiring, developing, and retaining adequate labor resources are some of the most vexing challenges for agricultural employers – even more so this year.
Local workers are often not available in sufficient numbers to meet the needs of seasonal employers, or are uninterested in seasonal or temporary jobs, or farm work in general. Employing undocumented workers is of course, illegal and risky, with Immigration and Customs Enforcement (ICE) raids and I-9 audits increasing each year. Moreover, most immigration violations cannot be resolved within the United States. Persons who entered illegally, or overstayed visas must return to their home countries to fix their status in most cases.
The H-2A program, despite its challenges, can be a lifeline to agricultural employers. Both the U.S. Department of Labor and U.S. Citizenship and Immigration Service (USCIS) have proposed new regulations intended to modernize the H-2A program and make certain aspects of the program more in line with other nonimmigrant visa classifications. Further, this year, we also saw the implementation of a new wage rule, which greatly impacts position classifications that fall outside of the “Big 6” classifications for field and livestock workers.
What is the H-2A Program?
By way of background, the H-2A program is for temporary agricultural positions. In 2023, the U.S. Department of Labor received 21,018 H-2A applications representing 378,400 workers. This is a 7,000 increase in workers over 2022. What is agricultural work? Agricultural work includes: The cultivation of soil; raising, feeding, caring for, training, or management of livestock, bees, poultry, fur-bearing animals, or wildlife; or the raising or harvesting of any other agricultural or horticultural commodity; notably, services performed in connection with production or harvesting of maple sap, in connection with the raising or harvesting of mushrooms, or in connection with the hatching of poultry constitute ag labor only if such services are performed on a farm.
Employers must pay an Adverse Effect Wage Rate, or AEWR. This varies by state. The work must be full-time and temporary or seasonal (up to 10 months). Although a year-round need for a single position is not permissible, there may be ways to achieve year-round coverage between two separate positions with opposite seasons of need. For example, a Farmworker could be needed during the growing/harvest season (March through November), but the farm may need Winter Maintenance Workers for the months of December through February. On top of the AEWR pay rate, employers must provide housing free of charge, as well as transportation to and from their home country.
State – Northeast
AEWR for Field Work, per Hour
State – Comparison States
AEWR for Field Work, per Hour
Employers must also recruit and preferentially hire U.S. workers over H-2A workers. This means contacting any U.S. employees laid off from the prior season to see if they are willing to return, as well as conducting domestic recruitment. Employers must submit a recruitment report and must document the names of each U.S. worker who applied for the job and whether they were hired or why not. These records must be retained for a period of three years. Employers must continue to cooperate with the state workforce agency (SWA) in recruiting and hire any U.S. workers until 50% of the work period is completed. Employers must complete and retain a final recruitment report at the 50% mark of the work period.
Employers must report any termination or abandonment of workers within 2 working days. It is also worth noting that the terms and conditions of the H-2A contract applies to all the farm’s workers – including domestic workers – they must also receive at least the AEWR rate if performing similar duties to H-2A workers.
U.S. Department of Labor Proposed H-2A Rule
On September 15, 2023, the U.S. Department of Labor published a proposed rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” If adopted, it would significantly alter the H-2A program as we know it. The proposed amendments could deter employers from taking advantage of this essential and effective lifeline that now exists. The H-2A program is supposed to be a balance between the public interest, employers' interests, and workers' interests. The proposed rule ignores the public interest and employer interests in favor of a narrow conception of workers' interests and strongly promotes union participation.
DOL also intentionally contravenes congressional direction by (1) strongly promoting unionization in agriculture; (2) creating a contractual right to overtime in agriculture; and (3) mandating a one-size-fits-all progressive discipline system for H-2A and corresponding U.S. workers. DOL proposes to adopt a vague, "single employer" test that does not take into account any business realities from liability protection to tax planning to estate planning that affect modern agriculture. DOL justifies this test by the claim that it has been using this test, even though the regulations do not authorize it. DOL delegates debarment authority to SWAs under the guise of "discontinuation of services."
- The major notable provisions of this proposed rule include the following:
- Focus on strengthening protections for H-2A workers and enhancing DOL’s capabilities to monitor compliance and take enforcement action against employers
- Pro-Union: encourages union participation by H-2A workers
- Progressive discipline required for terminations based on job order: requires that 6 criteria be met prior to termination
- Expedited debarment procedures for employers and agents
- “Single-Employer Rule”: combines the needs of two related/affiliated entities into a single calculation of temporary need
- Strengthens protections for workers in the event of delayed start dates by employers due to crop conditions: limits minor delays to 14 days; employer must pay workers for each day of delay
- Transportation safety requirements
USCIS Proposed H-2A Modernization Rule
On September 20, 2023, the USCIS issued proposed regulations, “Modernizing H-2 Program Requirements, Oversight and Worker Protections.” The proposed rule is aimed at modernizing the H-2A program and codifying certain provisions into the regulations. This is the first substantial revision to the H-2A regulations in many years.
Unlike the Department of Labor proposed rule, the DHS rule provides a more balanced approach to representing the interests of both employers and H-2 workers. It also attempts to synchronize provisions from various employment-based visa categories, including the H-2A, H-2B and H-1B programs.
Some of the notable proposed regulatory changes include the following:
- Clarifies that employers who participate in the H-2A and H-2B programs are consenting to U.S. Citizenship and Immigration Services audits and investigations concerning their compliance with program regulations. USCIS reserves the right to deny, revoke or delay application approvals for non-compliance or uncooperative employers.
- Expands whistleblower protections that currently apply to the H-1B visa program to both H-2A and H-2B. This provision protects workers by allowing them to report employers for program violations and poor working conditions without the fear of retaliation.
- Clarifies which costs must be borne by the employer and which can be legally charged to the employee. Clarifies that costs for the exclusive benefit of the employee (such as passport application or renewal cost) can be the responsibility of the worker. The rule also imposes consequences to employers who wrongfully charge H-2 workers for the cost of visa processing.
- Transportation Costs for “Revoked” H-2A Petitions: requires employers pay for the reasonable cost of return transportation to the workers’ last place of foreign residence upon revocation of the petition. This is currently in place for H-2Bs, but not for H-2As. There are, however, no changes in the regulations for transportation costs outside of the revocation scenario. Currently, H-2B program regulations require an employer to pay for return transportation costs when a worker is terminated for ANY reason, including termination for cause, unless the worker voluntarily leaves. The H-2A regulations do not require employer-paid transportation to workers terminated for cause or voluntarily abandonment.
- DHS removed the term “abscondment, abscond” and other variations in favor of “does not report to work for a period of 5 consecutive workdays without the consent of the employer.” The removal of the prior terminology clarifies that the cessation of employment doesn’t necessarily mean the employee did anything wrong. They could have departed for poor working conditions.
- Removal of the H-2 Eligible Country List. Currently employers can bring in H-2 workers only from eligible countries as determined by USCIS and DOL. For years, this greatly limited options for employers that identified specific workers from countries not on the eligible list, making them go through a difficult waiver process. Now, employers may bring in workers from any country for both the H-2A and H-2B programs, greatly expanding the reach of the program.
- Clarifies the amount of time H-2 workers must remain outside the U.S. to reset their 3-year eligibility. Currently, H-2 workers are eligible to remain in the U.S. in H-2 status for no more than 3 years without then leaving the U.S. for a period of time to reset the clock. The current formula for determining what absences are “interruptive” is complicated and time consuming for employers and USCIS. The current period required to re-set the 3-year H-2 eligibility is 90 days if the H-2 workers have not previously departed the U.S. during the 3-year H-2 period. DHS now shortens this period to 60 days after accruing 3 years in H-2 status. This provides a significant benefit to employers that currently experience the burden of critically vital H-2 resources needing to be out for 90 days.
- Makes the H-2 grace periods consistent between H-2A and H-2B. Currently, H-2A workers are allowed to enter the United States one week prior to the start date of their H-2A visas, allowing them to get settled and prepared for employment. The H-2B regulations provide for 10 days. At the end of the H-2A program, workers receive a 30-day grace period, while H-2B workers only receive a 10-day grace period. This rule harmonizes both rules and now permits a 10-day grace period at the beginning of the season and a 30-day grace period at the end of the season for both H-2A and H-2B workers. This provides both workers and employers with much needed flexibility.
- Expands the 60-day grace period that applies to the H-1B program, to H-2A and H-2B. This provision would grant a 60-day grace period (or until the end date of their H-2 status, whichever is shorter) to H-2 workers following cessation of employment for any reason (termination or resignation) to find a new employer, change to a new visa classification, or depart the United States
- Portability: DHS expands the ability of employers to transfer H-2 workers presently in the United States in valid H-2 status to a new employer upon the filing of a transfer petition by the new employer. The workers are able to work for the new employer upon the filing of the H-2 petition with USCIS. The petition does not need to first be approved. This allows new employers to receive the benefit of these new workers much earlier in the process, rather than waiting months for USCIS to approve the petition.
- “Immigrant Intent” – this is a very significant development that will positively impact both employers and workers wanting to secure permanent status in the United States. Currently, H-2 visas are considered to be “single intent” – meaning they are not allowed to demonstrate any intent to remain permanently in the United States. This has been an obstacle to both employers and H-2 workers wanting to secure permanent resident status in the United States. This new provision seeks to change the regulations to make clear that the approval of an application for permanent labor certification, the filing or approval of an immigrant visa petition, or the filing of application to adjust to permanent resident status would not, by itself, be a violation of H-2 status or show an intent to abandon a foreign residence. Such fact, standing alone, would not constitute a basis for denying an H-2A or H-2B petition or the beneficiary’s admission in H-2A or H-2B status, or a petition to change status or extend status. This provision therefore provides flexibility for employers to sponsor their H-2 workers for permanent resident status (“Green Cards”) without jeopardizing the ability of these workers to continue participating in the H-2 programs. This is significant as more and more employers are seeking to sponsor H-2 workers for green cards to mitigate the instability and challenges of the H-2 programs.
Department of Labor Wage Rule – Navigating the Wage Maze
Earlier this year, the Department of Labor (DOL) finalized a new rule changing the methodology for how H-2A Adverse Effect Wage Rates (AEWRs) are determined, which became effective on March 30, 2023. Since then, additional guidance has been issued by the DOL in the form of FAQ’s that address specific fact patterns.
The DOL will continue to update the wage data yearly as it has been doing (AEWR update on January 1 and Occupational Employment and Wage Statistics [OEWS] update on July 1). According to the new rule, if the wage increases during a work contract period, the higher wage must be paid, and if the wage is lowered during the period, the advertised wage rate must still be paid.
The DOL assures H-2A users that, for the vast majority of users, there will be no change as it relates to the wage methodology. For those job opportunities that involve field and livestock workers engaged in basic job duties, the agency indicates there should not be significant changes and the DOL will continue to use the Farm Labor Survey to determine the AEWR, as done in the past. This includes duties such as the following: plant, tend, pack, harvest field crops, fruits, vegetables, nursery and greenhouse or other crops, tend livestock, or operate farm machinery, operating under the following Standard Occupational Classification (SOC) titles and codes, commonly referred to as “the Big 6”:
- Farmworkers and Laborers, Crop, Nursery and Greenhouse Workers (45-2092); Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093); Agricultural Equipment Operators (45-2091); Packers and Packagers, Hand (53-7064); Graders and Sorters, Agricultural Products (45-2041); and All Other Agricultural Workers (45-2099).
However, for all other occupations, the DOL will assign a statewide annual average gross hourly wage based on the OEWS survey. This will likely be a higher wage in most instances. If the job opportunity has multiple duties that cause the opportunity to be classified in multiple occupations, the highest rate will apply. As such, the DOL anticipates that some employers may want to separate applications limiting the job duties or find other alternatives outside of H-2A for accomplishing certain tasks.
Truck Driving Duties
The inclusion of driving duties has been a point of concern among agricultural employers across the country as prior to the implementation of the new wage rule, many driving-related tasks were contemplated under one of the big 6 classifications and therefore included in the normal AEWR methodology. Under the new rule, job orders that include duties involving hauling crops on public roads, operating semi-trucks or CDL requirements will likely result in the assignment of a Light Truck Drivers (53-3033) or Heavy and Tractor-Trailer Truck Drivers (53-3032) OEWS wage. For H-2A job orders that contain a blend of public road hauling duties or CDL requirements with traditional field work, DOL will likely assign the higher OEWS wage rate. This will need to be reviewed on a case-by-case basis.
Below is a list of OEWS wage rates for select states for truck drivers classified as Heavy and Tractor-Trailer Truck Drivers (53-3032). Although these are the current rates, DOL adjusts these rates every July.
|Dollars per hour
It should be noted that some driving duties are contemplated under the Agricultural Equipment Operators (45-2091) SOC code. Specifically, “drive trucks to haul crops, supplies, tools, or farm workers.” This can include driving workers from housing to the worksite, as long as this does not include driving workers to work on public roads, in a van used exclusively for passenger transport. The latter could result in the assignment of Shuttle Drivers and Chauffeurs (53-3053) classification based on OEWS wage data.
Likewise, where the job tasks, qualifications and requirements indicate skilled construction work will be performed on the farm, an OEWS wage could be assigned for Construction Laborers (47-2061), or even something more specialized, like Cement Masons and Concrete Finishers (47-2051). Further, advanced and complicated tasks like fabrication, electrical wiring and similar tasks could be assigned an OEWS wage for Farm Equipment Mechanics and Service Technicians (49-3041). Unfortunately, there are not many options to mitigate the assignment of an OEWS wage for positions outside of truck driving or mechanical work that can sometimes be folded into one of the “Big 6” occupational codes. Employers are encouraged to carefully review the occupational definitions for field and livestock workers in O*Net https://www.onetonline.org/) to determine whether there is any overlap that could allow the inclusion of some of the non-field work duties into an AEWR classification.
It is clear that one of the most pressing issues facing the seasonal and agricultural business community remains labor. Although there are some positive features in the USCIS proposed rule, the U.S. Department of Labor has thrown challenges and roadblocks at employers making compliance with an already overly burdensome program even more complex and expensive. There is no perfect visa program to alleviate the burdens of labor shortages, but the H-2A visa program is the closest option that exists and still provides a viable and workable solution if managed properly.
L.J. D’Arrigo is a Member and Legal Team Co-Leader for Immigration at Harris Beach, PLLC, Attorneys at Law. He is based in Albany NY, and can be reached at: firstname.lastname@example.org
Editors: Chris Laughton and Tom Cosgrove
Contributors: L.J. D’Arrigo and Chris Laughton
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