Primer: Evolution of the H-2A Visa Program
The H-2A visa is America’s most popular program for temporary workers. It allows employers to hire temporary or seasonal agricultural workers if there are not enough U.S. workers capable of or willing to perform the position. The United States has a history of hiring foreign workers, mostly from Mexico, for agricultural work, beginning with the Bracero Program in 1942. While the Bracero Program ended in 1964, Mexican workers continue to remain a vital part of the U.S agricultural landscape, and the large-scale Mexican migration to the U.S. in the 1980s, 1990s, and 2000s can be traced to the Bracero Program. While the H-2A program in its current form solicits strong reactions from labor rights movements and farm owners over the program’s inefficiencies, it remains a popular program among employers seeking temporary agricultural workers. The H-2A program employs the largest number of temporary foreign workers in the United States.
The Genesis of the H-2A Visa Program
The Immigration and Nationality Act of 1952 established the H-2 nonimmigrant visa program, under which temporary foreign workers were admitted to the United States to perform temporary and seasonal employment. However, the origins of the current H-2A program can be traced back to the Reagan administration. The Immigration Reform and Control Act of 1986 amended the Immigration and Nationality Act to separate the pre-existing H-2 visa program into H-2A for agricultural workers and H-2B for seasonal non-agricultural employment.
At the time of the creation of IRCA, the total admission of all temporary and seasonal workers to the United States was around 30,000, with farmworkers occupying the major share. The goal of the H-2A program remained identical to that of the overall H-2 visa program, which was to meet the United States’ temporary and seasonal labor needs without adding to the country’s permanent population. It was also meant to provide better oversight of the influx of foreign farmworkers in the country while protecting wages and working conditions of domestic workers. Since its inception, H-2A has become the largest temporary visa program in the United States. In 1987 when the program was first established, the Department of State issued 44 visas for H-2A foreign workers. Since then, the issuance of H-2A visas quickly expanded, and in fiscal year 2020, the department issued around 213,000 visas for temporary foreign farmworkers.
Regulations Governing the H-2A Visa Program
The H-2A visa program is administered by three agencies: the Department of Labor, the Department of Homeland Security, and the Department of State. The H-2A visa program, which does not have any cap limitations, allows U.S employers to sponsor foreign workers to work in the United States in agricultural jobs for less than a year if employers can demonstrate that there were no available U.S. workers for the position.
To bring foreign workers to the United States, employers must complete a labor certification process with the Department of Labor’s Employment and Training Administration. However, before the employer can submit a labor certification application, they must first submit a work order with their State Workforce Agency1 outlining the terms and conditions of the employment. The state workforce agency acts as a medium for employers to conduct domestic recruitment through an interstate clearance system before hiring foreign workers for seasonal agricultural employment. Employers must then submit the job order along with the certification application to the ETA. Once the certification is approved, ETA can post the job order on its registry while concurrently directing employers to conduct other domestic recruitment strategies, including contacting past U.S. workers for employment.
The regulations governing the prevailing wage criteria within the labor certification application for the visa program are meant to protect employees by requiring business owners to pay foreign workers the federal or state minimum wage rate, the prevailing wage rate, or the Adverse Effect Wage Rate (AEWR), whichever is highest. AEWR is a DOL authorized wage for H-2A workers which provides employees with a minimum wage guarantee under which wages for H-2A foreign workers cannot fall. For example, currently, California’s AEWR is $16.05, whereas the state minimum wage is $14/ hour. In 2020, the AEWR for foreign farmworkers across the United States ranged between $12 to over $15 an hour. Additionally, under the DOL labor certification requirement, employers must also certify employment for foreign workers for no less than three-fourths of the work period and pay for their housing, transportation, and workers’ compensation insurance. It is worth noting that H-2A workers are exempt from withholding of federal income taxes and FICA payroll taxes, while no such exemption exists for H-1B visa holders.
Figure 1: H-2A Agricultural Labor Market Tests and Protections
Guest workers in the H-2A visa program are not dual intent.2 Under the current regulations of the visa programs, foreign workers on an H-2A visa do not have provisions under which they can adjust their visas to a green card. Some foreign workers do obtain sponsorship under the EB-3 visa category if they are performing unskilled labor that is not temporary in nature and must undergo a second labor market test to prove that there are no U.S. workers for the job. The maximum period of stay for H-2A foreign workers is three years, after which the worker must leave the United States for three consecutive months before reapplying for an H-2A visa. Even when it is proven that the position requiring the H-2A worker continues to experience labor shortages, employers cannot sponsor the foreign worker for a permanent position. Moreover, employers are required to conduct labor certifications for the same occupation frequently, even when sustained shortages exist. If an employer begins the process of sponsoring a foreign worker on an H-2A visa for permanent residency, the worker may be denied a nonimmigrant visa or receive a rejection for a new temporary visa.
Attempts to Reform the H-2A Visa Program
The H-2A visa has undergone several attempts to modernize the visa program since its inception. In 2008, DOL and DHS instituted a federal rule that would provide farm owners “a suitable and timely flow of legal workers,” decreasing their dependency on unauthorized migrants. The new rule, which eventually took effect in 2010, decreased the waiting period migrants had to complete outside the United States after their 3-year visa limit from six to three months before they could be granted a renewed H-2A status. Furthermore, the new regulation extended the waiting period for workers awaiting departure or a new work contract from 10 to 30 days.
In addition to the time-based modifications, DHS rules also established new requirements for the program. These requirements included instituting regulations that prohibited employers, recruiters, and agents from recuperating payments from prospective H-2A workers conditional on obtaining H-2A employment. DHS also introduced limits to the H-2A program by limiting participation to nationals of designated countries, selected by DHS. In 2010, DHS introduced new rules to the H-2A program that required employers to submit a job order with the state workforce agency 60 to 75 days before employment. The ruling also requires employers to file a labor certification application at least 45 days before a foreign worker is needed.
In 2009, Congress introduced the Agricultural Job Opportunities, Benefits, and Security Act and the AgJobs Act in the House and the Senate, which proposed an overhaul of the H-2A visa program. The bipartisan bill had passed the Senate in 2006 as part of a larger immigration reform bill, but ultimately failed to pass the House. It was introduced again in 2007 as part of that year’s comprehensive immigration reform bill. The bill, which again failed to pass through Congress, would have helped streamline recruitment of H-2A workers, made changes to the program’s minimum wage requirements, and provided a legalization program for foreign agricultural workers.
Under these bills, for jobs that were covered under a collective bargaining unit, employers would be required to file certifications with DOL ensuring that an applicable union contract was available and that a bargaining representative was made aware of the filing of an H-2A application. If the position was not covered under a union contract, employers would be required to fulfill additional requirements to hire foreign labor, including steps to recruit U.S. workers. The bill would also have adjusted the AEWR and allowed employers to provide housing allowances to employees in lieu of providing housing. Finally, on the legalization front, DHS would grant a “blue card status” to foreign workers who had undergone at least 863 hours, or 150 days, of agricultural work in the United States within a 24-month period. However, DHS was not allowed to issue more than 1.35 million blue cards within a 5-year timeframe.
Another major reform to the H-2A guestworker program was attempted in 2013, when the Senate passed the comprehensive immigration reform bill, Border Security, Economic Opportunity, and Immigration Modernization Act. The bill would have created a new temporary agricultural worker visa and phase out the H-2A program entirely. The same year, the House introduced the AG Act, amended by the House Judiciary Committee, which would have established a new H-2C visa for agricultural workers while providing a path to legal status for agricultural workers. The bill was meant to reduce hurdles that farmers face in hiring foreign workers and protect farmers from litigation over abusive practices unless the nonimmigrant the involved parties have first attempted mediation to reach a satisfactory resolution. The bill would have allowed agricultural workers who were illegally present in the United States on April 25, 2013, a chance to obtain a temporary visa as H-2C workers. However, H-2C visas could not lead to permanent residency for workers. Moreover, to recruit an H-2C worker, an employer would need to file a petition with the Department of Agriculture attesting to recruiting U.S. workers, meeting minimum benefits, wages, and working conditions for all employees. The visas would be capped at 500,000 a year and would be subject to adjustments by the USDA.
In March 2021, the House passed the Farm Workforce Modernization Act of 2021, which also attempts to make reforms to the H-2A visa system. Chief among them, it would provide a path to legal status for many undocumented agricultural workers and their dependents if they clear background and national security checks. As of FY2018, almost 50% of America’s farmworkers are undocumented. The bill, supported by both farm owners and farmworker advocates, has seen bipartisan support in Congress. The visa program would become adaptable based on agricultural needs by increasing and decreasing the annual cap based on labor shortages. The legislation would also allow employers to sponsor a higher number of H-2A workers for a green card and allow workers to self-petition for permanent residency after 10 years of service. Finally, the bill would make all farm owners comply with federally mandated E-Verify services to authenticate farmworker’s legal status in the United States. Currently, advocates are pushing to include this legislation in the FY2022 Budget Reconciliation bill.
H-2A Visa Program Use
While reforms to the H-2A visa program have remained controversial through the years, the popularity of the program itself has risen exponentially since it was formally established in 1986. As shown in Figure 2, H-2A labor certification and visa issuances have been increasing since 2011. In 2019, the DOL Office of Foreign Labor Certification issued 257,667 labor certifications and the State Department issued 204,000 H2A visas to foreign workers. Moreover, in 2020, during the COVID-19 pandemic, labor certifications decreased only slightly, to 255,430, while visa issuances increased to 213,394, demonstrating that employers’ demand for foreign labor has remained high, even during the pandemic.
Figure 2: H-2A Labor Positions Certified and Visas Issued
According to the OFLC data, states like Florida and Georgia consistently rank as some of the top states employing foreign workers on H-2A visas. As Figure 3 demonstrates, in FY2020 and FY2019, Florida had 14.2% and 13.3% of total labor certifications, followed by Georgia at 10% and 12.5%, respectively. Moreover, 50% of all labor certifications belonged to the top five states, including Washington, California, and North Carolina, and 88% of all labor certifications were for farmworker and crop laborer occupations.
Figure 3: Total Certification for H-2A Top 10 States (FY2019 and FY2020)
States like Florida, Georgia, and Washington’s ascension to top H-2A employing states is a relatively recent development. Florida and Georgia’s growth in labor certification for foreign workers may be attributable to their high fruit and nut production, which requires intensive physical labor, and their further distance from border communities, where the majority of the undocumented populations reside. For example, Texas, which has the largest share of farms in the United States, has an H-2A job certification rate well below 2,000.3 Similarly, California, despite its high agricultural output, has a relatively low certification usage, at 8%. This could be attributed to business owners’ access to a larger undocumented labor pool, which in both California and Texas stands at around 5.5%.
Many of the H-2A farmworkers still come from Mexico, a vestige of the old Bracero program. For example, out of 442,000 total H-2A admissions in FY2019, 94% were Mexican nationals. Mexico is followed by Canada, Jamaica, and South Africa with around 6,800, 5,000, 4,900 H-2A admissions, respectively. Research suggests that Mexican nationals generally have higher access to U.S. H-2 seasonal programs, and are therefore highly represented in the U.S. seasonal labor market. Since the implementation of the H-2A program, a higher number of Mexicans have sought legal avenues to enter the U.S. labor market, correlating with a decreasing number of unauthorized Mexican border crossings into the United States between 2008-2018.
Figure 4: Number of Visas Issued to Mexico and Number of Mexican Apprehensions at the SW Border
Reform for H-2A Visas Still Remains Controversial
While there have been reports of abuse of farmworkers by employers, other research suggests that the vast majority of H-2A employers are not violating provisions of the labor certification process outlined for the program. Reports by the Government Accountability Office have contended that H-2A guest workers are vulnerable to abuse by labor recruiters or employers. Abusive labor recruiters or employers may provide H-2A foreign workers with inaccurate information about wages paid and job information, and charge excessive fees for recruitment, violating major provisions outlined in the labor certification process. The GAO analysis also determined that around 44% of farm owners relied on a third-party recruitment agency to hire seasonal workers, which has made oversight for farm owners difficult. However, the bureaucratic and cumbersome hiring process also means that many farm owners, especially of smaller or mid-size capacity, require additional assistance from third-party vendors to meet their labor requirements. This is especially true for farmers who require employees during different seasons and must conduct certification and labor searches multiple times a year. Moreover, new, and smaller farming operations may not have the same built-in network in foreign countries that recruiters may provide.
Immigrant rights groups have been concerned about the increasing use of labor contractors, citing that in FY2018, contractors or growers associations were hiring more farmworkers than individual farms. Farmers, on the other hand, contend that the process of H-2A hiring is confusing and DOL’s decisions are inconsistent, forcing them to outsource their hiring needs. Many employers are uncertain about H-2A regulations related to pay, transportation, and conditions of employment, which seem inconsistent from year to year and employer to employer.
Another point of contention for many working on reforming this visa has been the wages and living conditions of farmworkers. Migrant advocates have maintained that wages for farm workers have remained low and have suffered high rates of wage and labor violations. For example, according to the Economic Policy Institute, the average salary for farmworkers in 2020 was approximately $14 per hour. However, arguments on the other side of the spectrum suggest that the minimum wage for H-2A workers is higher than minimum wages for every state, plus workers receive housing, transportation, and living costs covered by the employers.
What Does the Future of the H-2A Program Look Like?
These controversies around the H-2A visa demonstrate the need to balance the demands of many groups and interests while seeking reform. H-2A visas can become an important tool for lesser-skilled workers to enter the U.S. labor market and improve their conditions at home, while sustaining U.S. agricultural businesses. For H-2A visa reforms to be sustainable, both sides of the argument must be addressed.
The Farm Workforce Modernization Act, introduced in the 116th and 117th Congresses attempts to address many of these issues and has received bipartisan support, but has not yet passed Congress. While current actions by the Democratic majorities in the House and Senate are attempting to provide legalization to essential workers, including farm workers, the proposed language to date does not include reforms to the current H-2A programs. Though Congress has attempted multiple times, there has not been substantial reform to the H-2A visa program in decades. This has meant that both farm owners and migrants have had to make the best use of a program that is not working well for either party.
1 State Workforce Agencies are funded by the Labor Department, and it manages labor issues in each state while serving areas of planned employment.
2 Dual intent is a provision under the Immigration Act of 1990 that allows those who have a dual intent visa to take steps toward adjusting their status to become lawful permanent residents while still maintaining their current nonimmigrant visa. However, foreign workers under the H-2A visas must prove that they intend to voluntarily return to their foreign residence at the end of their authorized stay and taking steps toward a green card can be used to cancel or deny their current nonimmigrant status.
3 This figure is based on the FY2016 labor certification annual report, the last time the report was published.
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