The H-2A Program in 2022
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May 16, 2022
The H-2A program allows US farmers who anticipate shortages of seasonal workers to be certified by DOL to recruit and employ H-2A workers to fill seasonal jobs for up to 10 months. There is no cap on the number of H-2A workers who can be admitted, and about 10,000 US farm employers were certified to fill 317,000 seasonal farm jobs with H-2A workers in FY21. Some employers file multiple applications, explaining why DOL deals with over 16,000 employer applications a year.
The number of jobs certified has been increasing, tripling over the past decade. About 80 percent of the jobs that DOL certifies to be filled by H-2A workers result in the issuance of H-2A visas; some 258,000 H-2A visas were issued to foreigners in FY21, reflecting the fact that some workers fill several jobs and some employers do not follow through to recruit and employ H-2A workers. Over 99 percent of H-2A visas went to citizens of four countries: Mexico, 93 percent, South Africa, three percent, Jamaica, two percent, and Guatemala, one percent.
The number of H-2A jobs certified tripled between FY13 and FY21 to 317,000
Over half of certified H-2A jobs are in five states: California, Florida, Georgia, North Carolina, and Washington. The share of all H-2A jobs in these five states rose from 34 percent in 2007 to 52 percent in 2021 due to the growth in each state and especially in California and Washington.
The top 5 states had 52% of H-2A jobs in FY21; CA and WA H-2A rose fastest
Three federal departments are responsible (1) for determining whether employers need H-2A workers and enforcing regulations (DOL), (2) whether the employer petition for H-2As is accurate and admitting workers who have H-2A visas (DHS), and (3) issuing H-2A visas to foreign workers abroad (DOS).
3 federal agencies are involved in H-2A processing
Certification. DOL requires that employers follow a four-step process to be certified to employ H-2A workers: (1) file a job order with the SWA, (2) file an H-2A application with the NPC, (3) try to recruit US workers and report on the results, and (4) submit housing, recruitment and other reports to the NPC. Certification of the need for H-2A workers means that DOL agrees with the employer (1) that US workers are not available and (2) that the presence of H-2A workers will not adversely affect similar US workers.
Employers seeking certification begin the process at least 60 days, and no more than 75 days, before their need date by filing a job offer with their local State Workforce Agency (SWA). Employers assert in their Form ETA 790A job orders that (1) they are offering full-time temporary or seasonal jobs, (2) they require a specific number of H-2A workers to fill them, and (3) they are accurately describing the job and its location, the anticipated hours of work per day and days per week, and the start and stop dates. Employers also provide information on the housing available to H-2A workers, whether they will provide meals or cooking facilities, and spell out hourly and piece rate wages.
Employers send their job orders to the local SWA, which reviews them before entering them into a data base. SWA staff or local housing officials inspect the employer’s worker housing to ensure that it satisfies the higher of federal, state, or local standards.
DOL certification involves DOL’s NPC and state SWAs
At least 45 days before the employer-specified need date, the employer submits the SWA-approved job order to the DOL NPC and makes 17 assurances on ETA Form 790A, including that the job is full time and temporary, that workers will be provided with all necessary tools and equipment and covered by workers compensation insurance, and that H-2A workers will receive earnings statements that record their work start and stop times each day, hours worked, the hourly rate of pay and total earnings, any deductions from wages, and the employer’s name and FEIN.
Employers make 17 assurances when signing ETA Form 790A
ETA Form 9142 includes most of the same job and wage information as ETA 790, and employers certify their understanding of their obligations by signing that they have read Appendix A, which includes the same 17 employer assurances that are on ETA Form 790A.
Employers attest that the information they provide in Forms 790 and 9142 is “true and accurate”
At least 45 days before the employer-specified need date, the employer submits the 750 and 9142 forms to the NPC. The employer tries to recruit ex-employees and other US workers and keeps a record of what happens to each US applicant, including whether they were hired or why not. These recruitment efforts find few US workers; less than three percent of jobs that employers want to fill with H-2A workers are taken by US workers.
Employers submit their recruitment reports, housing certification, and other documents to the NPC, which must certify or deny the employer’s request for certification at least 30 days before the employer-specified need date. Employers pay $100 plus $10 per job certified to DOL up to a maximum $1,000. Employer-paid fees do not cover DOL’s costs of administering the H-2A program.
Fresh Harvest was certified to fill 570 strawberry jobs in Santa Maria from April to November 2022
H-2A workers who cannot pick as fast as the average productivity of the crew may be terminated
USCIS. Once certified, the employer sends the DOL certification and an I-129 petition for non-immigrant workers to USCIS, along with a $460 fee. Most I-129 petitions do not name the H-2A workers the employer has recruited. The petition requires employers to restate (1) that the jobs they are seeking to fill with H-2A workers are temporary or seasonal and (2) that the workers they recruited did not pay anything to get H-2A visas. GAO reviews suggest that USCIS processing adds little to H-2A program integrity and could be eliminated.
USCIS checks on employer legitimacy and assurances that workers did not pay for H-2A visas
USCIS sends approved I-129 petitions to DOS, and employers provide US consulates with the names of the foreign workers for whom the US employer is seeking an H-2A visa. These recruited workers travel to US consulates, where local entities who are often ex-local staff of the US consulate process worker biometrics and deliver worker passports and documentation to the consulates. US employers must pay for worker visas and related processing costs.
Workers must be available for personal interviews with the US consular officials who issue visas, but few are interviewed. After worker passports are returned with H-2A visas, most Mexican H-2A workers are bussed to the US border, inspected by CBP officers as they enter the US, and continue to their US workplace. Employers pay about $100 per worker for biometrics processing, and $190 for each worker’s H-2A visa.
The total cost to employers of each Mexican H-2A worker is about $750 in government fees and processing costs and $500 to $750 to house workers at the US consulate and transport them to the US. Once in the US, H-2A workers earn $120 to $150 a day and employers pay $10 to $30 a day to house and transport each worker from their housing to the fields.
The on-site costs of H-2A workers in the US are $12 to $18 an hour in wages, higher in western states and lower in the southeast, plus $1 to $3 an hour for housing and transport. Employers who provide meals can deduct the cost of food from wages, but most employers provide cooking facilities so that H-2A workers can purchase and cook their own food. Employers do not have to pay federal social security taxes on H-2A wages, saving eight percent, and in most states the wages paid to H-2A workers are exempt from unemployment insurance taxes, saving another 3 to 5 percent.
The total costs of H-2A workers are typically $20 to $25 an hour, more than the $15 to $20 an hour cost of US workers who pay for their housing and transport to work. Employers must provide workers compensation insurance for all workers, but in most states they pay taxes for social security and unemployment insurance only on the wages of US workers.
H-2A workers cost more per hour than US workers
Enforcement. DOL’s NPC can refuse to certify an employer’s need for H-2A workers, USCIS can find that the employer is not legitimate or charged workers for jobs, or DOS can find that a worker recruited by the employer is not eligible for an H-2A visa due to a previous overstay, DUI in the US, or other violation. DOL certified 96 percent of employers and 96 percent of the jobs requested in FY21. USCIS rarely refuses I-129 petitions, and fewer than one percent of H-2A visa applicants are denied.
DOL certifies over 96% of employers and the jobs they want to fill with H-2A workers
The primary federal enforcer of labor laws inside the US is DOL’s Wage and Hour Division, which launches directed investigations in response to complaints and sometimes conducts random investigations; complaints may arise when a disgruntled worker meets a union or worker advocate.
WHD investigates an average 1,000 farm employers a year, finds violations of labor laws in two-thirds of these investigations, and orders back wages for 10,000 US and H-2A workers each year. The US has 100,000 farm employers registered with state UI systems, including 3,000 farm labor contractors. Some 500,000 farms, including the 100,000 registered with UI, report hiring workers to the Census of Agriculture, although COA employers sometimes pay family members to reduce taxes on farm income.WHD orders farm employers who violate all federal labor laws to pay an average $8 million in back wages a year or $800 per worker. WHD levies civil money penalties of $7 million a year or an average $1,000 each for the 700 farms with violations. A third of the 1,000 farms investigated in FY21 had violations of H-2A regulations that resulted in orders to pay almost $6 million in back wages to 7,400 US and H-2A workers, an average of almost $800 per worker, and led to the assessment of $5.6 million in CMPs. -2A workH-2A workers/
Almost ¾ of ag back wages and CMPs in FY21 involved employers of H-2A workers
|Fiscal Year||Number of Investigations in Agriculture||Employees Receiving Back Wages||Back Wages||Civil Monetary Penalties Assessed|
|Case with Violations||Employees Receiving Back Wages||Back Wages||Civil Monetary Penalties Assessed||Total Violations under H-2A|
Typical violations of H-2A regulations include refusing to hire US workers, paying H-2A workers more than US workers, and housing H-2A workers in substandard housing or failing to reimburse the travel expenses of H-2A workers. There are also violations such as:
- requesting certification for too many workers and sending the extra workers to non-certified employers
- misclassifying workers, such as calling construction or driving jobs farm worker jobs
Some firms engaged in trucking farm commodities and constructing buildings on farms achieve lower labor costs by hiring H-2A workers at the relatively low wage of field workers rather than the higher wages of drivers and construction workers.
Violations of labor laws are concentrated among a relative handful of employers. The five percent of US crop employers with the most violations accounted for 70 percent of all labor law violations found between FY05 and FY19, and the five percent of US farm labor contractors with the most violations accounted for 65 percent of the total.
The 5% of U.S. crop farms with the most employment las violations detected by Wage and Hour Division investigations accounted for 70% of all violations found to have been committed on U.S. crop farms during fiscal years 2005-2019
The 5% of U.S. farm labor contractors (FLCs) with the most employment law violations detected by Wage and Hour Division investigations accounted for 65% of all violations found to have been committed by FLCs during fiscal years 2005-2019
There is disagreement about the level of compliance with H-2A regulations and labor laws. Employers emphasize that a third of WHD investigations find no violations, and that H-2A workers are eager to return year-after-year, suggesting that the H-2A program involves compliant employers and satisfied workers. Worker advocates believe that violations are widespread, but workers who are earning 10 times more than they would at home are reluctant to complain for fear of being blackballed and not invited to return.
There are regular exposes of abusive employers. For example, the manager of the Dalhart, TX operations of Idaho-based Blaine Larsen Farms allowed his brother to handle the recruitment of H-2A workers, and he charged 100 Mexican workers $1,500 each for H-2A visas. One of the H-2A workers died in July 2020, leading to an investigation that found that Blaine Larsen H-2A workers arrived in debt and could not leave until their repaid their recruitment debts.
H-2A workers paid for jobs at Blaine Larsen Farms in Texas
US Department of Labor. Office of the Inspector General. OIG. 2020. Overview of Vulnerabilities and Challenges in Foreign Labor Certification Programs.