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January 2017, Volume 23, Number 1

H-2A, AEWR; H-2B

DOL certified 165,700 jobs to be filled with H-2A workers in FY16, that is, 95 percent of the 8,700 employer requests to fill almost 173,000 jobs were approved. Florida accounted for almost 14 percent of farm jobs certified, followed by 12 percent in North Carolina, 10 percent in Georgia, eight percent in Washington, and seven percent in California; these five states had half of the jobs certified.

The NCGA was the largest H-2A employer, with 12,200 jobs certified, followed by WALFA with 9,500, Fresh Harvest with 3,800, and Rodrigo Gutierrez-Tapia with 3,200. Fresh Harvest and Elkhorn Packing house many of their H-2A workers in Salinas-area motels. A city ordinance limits people to 21 consecutive days in city motels. If enforced, the rule could make it difficult to house H-2A workers in them.

In FY06, DOL certified 59,100 jobs to be filled with H-2A workers; the number of jobs certified rose by over 100,000 in a decade. There were increases in every state, including an increase from 2,300 jobs certified in California in FY06 to 11,100 in FY16, up almost 400 percent.

In FY15, almost 10,000 farm employers were certified to fill almost 140,000 jobs with H-2A workers, up from 7,800 and 85,000 in FY12. Florida and North Carolina each had almost 18,000 jobs certified, followed by Georgia, 14,000; Washington, 12,000; California 9,000; and Louisiana, 8,000.

The major crops in which H-2A workers were employed were tobacco, 14,500; berries, 12,500; apples, 7,500; hay 7,000; and oranges and melons, almost 6,000 each. The NCGA had almost 12,000 jobs certified, followed by WFLA, 7,900, Fresh Harvest, 3,200, and Zirkle Fruit, 2,900.

Farmers are complaining about the administration of the H-2A program, but the focus of their ire has shifted from DOL to USCIS, which is issuing Requests for Evidence that farmers believe are not necessary. Washington's WAFLA cited the case of a large blueberry grower who was asked to provide evidence that blueberry harvesting is a seasonal job. WAFLA, which reported assisting 200 employers to obtain 9,000 H-2A workers in 2016, says that USCIS has a goal of acting on H-2A applications within two weeks.

In FY12, DOL certified 85,248 jobs to be filled with H-2A workers. Hours per week for the 5,400 farms certified averaged 43, but ranged from one to 99 hours a week. The mean number of weeks for which H-2A workers were requested was 33. If weeks of US employment are multiplied by the number of workers requested by each farm, which ranged from one to 1,400, the average number of weeks drops to 26, reflecting the fact that the 52-week sheepherder jobs involve relatively few workers. H-2A workers earned an average $540 a week or $14,500 over 26 weeks.

The average US Adverse Effect Wage Rate rose from $11.74 in 2016 to $12.20 in 2017. The plains states have the highest AEWRs in 2017, $13.79, while the lowest AEWRs are in the southeast, $10.38. The AEWR in Oregon and Washington is $13.38 and in California $12.57. The AEWR for sheepherders is $1,390 a month, based on the federal minimum wage for a 48-hour week and 4.3 weeks of work a month.

H-2B. US employers requested that DOL certify their need to fill 126,100 jobs with H-2B workers in FY15, up from 108,000 in FY14. There are 66,000 H-2B visas a year available; H-2B workers returning to the US from the previous three years are not counted against the cap.

Landscaping accounts for 40 percent of H-2B jobs certified, followed by forestry, eight percent. Average hourly earnings in 10 of the 15 largest occupations using H-2B workers, including landscaping, declined between 2004 and 2014, while unemployment rates rose. One reason for low H-2B wages is that employers are allowed to use private wage surveys to determine the prevailing wage that must be paid to H-2Bs.

Several Arizona-based trucking firms tried and failed to win certification to employ H-2B workers to haul Mexican-grown produce because they could not prove that the jobs were temporary.

Some 230 Jamaican H-2B guest workers at Kiawah Island Inn Golf Resort near Charleston, South Carolina will receive $2.3 million in back wages for time worked between 2012 and 2014. Most returned year-after-year, and their suit alleged that each had to pay recruitment fees and high transportation and housing charges that reduced their wages below the minimum wage. Kiawah also counted the tips received by the workers toward their wages, and agreed to settle the case in December 2016.

Totals. How many temporary foreign workers are in the US? One estimate puts the number at 1.7 million in FY13, over one percent of the US labor force, including 655,000 or almost 40 percent H-1Bs, followed by 307,000 or almost 20 percent L-1s, meaning that half of the temporary foreign workers were H-1Bs and L-1s.

There were an estimated 216,000 J-1s and 139,000 F-1s and OPTs in the US in FY13, so that the four largest programs accounted for 1.3 million or three-fourths of temporary foreign workers.