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October 2012, Volume 18, Number 4

H-2A, H-2B, Braceros

The US admits about 200,000 foreign workers with H-visas each year. In 2010, the US Department of State issued 55,900 H-2A visas, 47,400 H-2B visas, and 117,400 H-1B visas. In addition, DOS issued 74,700 L-1 visas for intra-company transfers, 320,800 J-1 visas for exchange visitors, and 385,200 F-1 visas to foreign students.

The H-2A program was the only temporary worker program that expanded in the aftermath of the 2008-09 recession.

Some of the foreigners admitted with temporary visas to work, or with F-1 and J-1 visas that allow foreigners to work at least part time, stay in the US more than one year, so that there are 700,000 to a million temporary foreign workers in the US at any one time. Mexico is the major source of H-2 workers, 90 percent of the H-2As and 70 percent of the H-2Bs, India the major source of H-1B and L-1 visa holders, and China is the leading country of origin of J-1 and F-1 visa holders.

In a review of the H-2A and H-2B programs, the Congressional Research Service noted the tension between two competing goals, that is, to respond "to legitimate employer needs for labor and to provide adequate protections for US and foreign temporary workers." After the failure of comprehensive immigration reform in the Senate in summer 2007, President Bush announced a "streamlining" of guest worker programs to encourage employers to hire H-2A and H-2B workers rather than unauthorized workers.

The outgoing Bush administration issued new DHS and DOL regulations governing the H-2A and H-2B programs in January 2009. The Obama administration kept the Bush DHS regulations but reversed the DOL regulations.

DOL announced in September 2012 that employers seeking H-2A and H-2B guest workers could file their applications electronically via the iCERT system. DOL is allowing employers and their agents to sign ETA Form 9142, scan their signatures, and upload the documents to iCERT.

H-2A. DOL makes H-2A application data available at: http://www.foreignlaborcert.doleta.gov/quarterlydata.cfm

Between FY06 and FY10, the number of employer requests for certification to fill jobs with H-2A workers rose from about 64,000 to 90,000, and DOL certified employers to fill over 90 percent of the jobs they requested.

Data for the first three quarters of FY12 show that DOL certified 140 California farmers to fill over 92 percent of the 2,200 jobs for which they requested H-2A workers. Most of the jobs involved harvesting vegetables near the Mexican border (Tanimura & Antle requested certification for 550 jobs and was certified to fill 485), but most of the employer applications dealt with sheepherders, who offered $750 a month for 40-hour or 60-hour weeks (some sheepherders were offered $1,422 a month). The AEWR for California in 2012 is $10.24, which was the most common hourly wage offered; the highest wage was $15 an hour offered by Orozco Grover in Fallbrook.

Most of the employer applications, over 100, were for one, two or three sheepherders. H-2A sheepherders are being employed 40 or 60 hours a week for monthly salaries of $750 or $1,422.52 a month. These mostly Peruvians stay with the sheep and are on duty around the clock.

Peri & Sons Farms, an onion grower based in Yerington, Nevada, agreed to pay $2.3 million in back wages to 1,365 Mexican H-2A workers in July 2012. Peri also paid a $500,000 fine to DOL for failing to pay workers the AEWR, failing to pay workers for the time they spent in mandatory pesticide training, and not reimbursing the H-2A workers for their subsistence expenses while they traveled to and from the United States.

The federal government dismissed human trafficking charges against the CEO of Global Horizons Manpower, Mordechai Orian, in July 2012 just before the trial was to begin in Honolulu. Orian and seven others were charged with trafficking 600 Thai H-2A workers.

In remarks to the Clinton Global Initiative in September 2012, President Obama condemned human trafficking, saying "human trafficking is not a business model. It is a crime, and we're going to stop it." Obama said that the annual State Department Trafficking In Persons report would include data on trafficking in the US, and that there would be more resources for the 3 Ps; prevention, protection and prosecution. Obama issued an executive order prohibiting federal contractors, contractor employees, subcontractors and their employees from engaging in any activities related to human trafficking.

Federal prosecutors, who said that they could not prove the human trafficking charges beyond a reasonable doubt, dropped similar charges in 2011 against the owners of Hawaii's Aloun Farms, Alec and Michael Sou, after the lead prosecutor admitted the laws and regulations governing the H-2A program did not expressly prohibit charging workers recruiting fees until 2008. Some of the Thai workers who were prepared to testify against Global have applied for visas available to victims of human trafficking who cooperate with prosecutors.

The NCAE surveyed 1,444 of the 7,400 applications for H-2A workers in FY10 and received responses from 45 percent or 640. These 640 employers, who requested certification to fill 163,000 farm jobs with H-2A workers, reported that over three-fourths of their applications were fully certified by DOL. A fourth of employers received notices of deficiency or requests that employers modify their applications to correct errors. For example, employers generally may not require US workers to have experience or set productivity standards above prevailing norms. Over 85 percent of the employers responding to the NCAE used an agent to apply for H-2A certification.

Employers are required to cooperate with State Workforce Agencies to try to recruit US workers. SWAs referred some 35,000 US workers to the recruitment ads for the 163,000 jobs, and five percent or 1,750 of these US workers were hired and completed the season defined by the employer.

Employers specify their need date and must apply for certification at least 45 days before this need date; DOL must make a decision on their applications 30 days before this need date unless the employer is required to make changes to its application.

The farm employers surveyed by NCAE said that DOL required more time to certify their applications, presumably including the time required for employer changes. The NCAE survey found an average of 23 days between the date of DOL certification and the employer date of need, and an average 14 days for USCIS to approve employer petitions.

Employers were asked to estimate the cost to their operations of workers arriving later than desired, which they put at $168 million. There was no report of the total revenue of the sample farms.

Many employers fear stepped up enforcement of labor laws if they obtain workers via the H-2A program. The NCAE survey found that fewer than 10 percent of growers who obtained workers via the H-2A program in 2010 were audited by DOL's Wage and Hour Division before they applied for H-2A workers. However, 35 percent were audited after being in the H-2A program.

About two-thirds of sample employers were satisfied with the H-2A program, including 15 percent who were very satisfied. However, over half of the sample employers had complained to their Congressional representative about some aspect of the H-2A program.

H-2B. The H-2B program admits up to 66,000 foreign workers a year to fill seasonal nonfarm jobs that generally last up to nine months for which "unemployed persons capable of performing such service or labor cannot be found in this country." Like the H-2A program, the H-2B program is a certification program, meaning that employers must try to recruit US workers before being certified by DOL to recruit and employ temporary foreign workers.

Between FY06 and FY10, the number of employer requests for certification to fill jobs with H-2B workers fell from 247,000 to 113,000. DOL certified employers to fill about 80 percent of the jobs they requested.

The most common job title in recent years has been landscape laborer, accounting for a quarter of certifications, followed by amusement park worker, forest worker, and housekeeper, about seven percent each. The number of H-2B visas issued by DOS rose from about 40,000 in FY00 to a peak of 130,000 in FY07 and was about 45,000 in FY11. Between FY05 and FY08, returning H-2B workers were exempt from the 66,000 a year cap.

The outgoing Bush administration streamlined the H-2B program with new DOL regulations that became effective in January 2009. DOL reversed these changes in January 2012, noting that the new regulations that allowed employers to "attest" that they were satisfying H-2B regulations resulted in some employers not "recruiting, hiring and paying US workers" appropriate wages.

DOL (www.dol.gov/whd/immigration/H2BFinalRule/index.htm) issued revised final H-2B regulations that returned the H-2B program to a certification model. DOL emphasized that the attestation procedure was vulnerable to fraud that becomes apparent only if there is an investigation.

Under the 2012 regulations, employers apply for DOL certification in two steps. First, they register and demonstrate that their need for H-2B workers is temporary or seasonal; once registered, employers can apply for H-2B workers for the next three years. Second, employers test the labor market each year for US workers to confirm that none are available. This labor market test is conducted by posting the jobs that employers want to fill on an electronic registry and interviewing US applicants who respond until three weeks before the employer-specified job start date. State Workforce Agencies supervise employer recruitment of US workers.

Employers must pay an H-2B worker's transportation costs to the US job after the migrant completes half of the contract period and pay return transportation at the end of the job as well as the worker's visa fees. Employers must guarantee H-2B workers pay for three-fourths of the hours promised in their contracts, at least three-fourths of a 35-hour week for full-time workers.

The return to H-2B certification was supposed to take effect April 27, 2012, but a federal judge issued an injunction blocking DOL from implementing the new H-2B regulations. DOL's appeal is pending before the US Court of Appeals for the Eleventh Circuit.

Under a separate rule-making procedure, DOL changed the way that the prevailing wage that must be paid to H-2B and US workers is calculated. DOL wants employers to pay the mean wage determined by the Occupational Employment Statistics (OES) wage survey for the occupation in the area of intended employment. Employers protested that the mean wage is higher than the prevailing wage that most now pay, and Congress blocked the new wage rule from going into effect until at least October 2012.

In August 2012, a federal judge dismissed a complaint filed by employers who alleged that DOL's switch to the mean OES wage violated immigration law. The Louisiana Forestry Association had argued that DHS had unlawfully delegated to DOL the authority to determine the appropriate wage; the judge dismissed the LFA challenge.

DOL's argument for using the mean OES wage is that most employers consider the jobs filled by H-2B workers to be unskilled, so that the past practice of using the mean wage of the first tier of the four-tier wage in OES data biases H-2B wages downward. DOL explained that using the mean wage in the occupation, rather than the tier 1 low-skilled wage, raises the average hourly wage that must be paid to H-2B workers by almost $5 an hour or $850 million a year.

Worker advocates charged that C.J.'s Seafood in Breaux Bridge, Louisiana engaged in "systematic violations of labor law and grossly inhumane treatment" of 40 to 50 H-2B workers. Wal-Mart suspended C.J.'s as a supplier of crawfish, saying "Not paying workers the wages they are due is unacceptable."

The Chicago law firm of Hughes Socol Piers Resnick & Dym has sued several Louisiana crawfish processors, including Riceland Crawfish and L.T. West, alleging that H-2B workers from Mexico earned less than the federal minimum wage of $7.25 at piece rates set by the processors. DOL in July 2012 reported that C.J.'s owes $248,600 in fines and back wages, and that Harvest Time Seafood paid $53,000 in back wages.

Braceros. The Mexican government in July 2012 reported that 166,840 former Braceros each received $2,771 between 2005 and 2011, for a total $462 million. Payments are still being made, and the government estimates that eventually 194,000 ex-Braceros will receive a total $510 million.

The payments were from a mandatory savings scheme enforced during WWII, when 10 percent of each Bracero's pay was deducted from US wages and transferred by Wells Fargo to Mexico's former Banco de Credito Agricola, a government bank that did not return the withheld wages to workers.

Bruno, Andorra. 2012. Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues. Congressional Research Service. R42434 March 20.