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January 2008, Volume 14, Number 1

H-2A TEGL, H-2B

The H-2 program in the 1952 Immigration and Nationality Act was very short, with most details left to implementing regulations. In drafting the Immigration Reform and Control Act of 1986, growers persuaded Congress to make changes such as reducing the application period from 80 to 60 days, and to write many of the regulations governing the program, renamed H-2A, into law.

DOL TEGL. Employers file requests for labor certification with one of two US Department of Labor National Processing Centers, which review and accept them, direct State Workforce Agencies (SWAs) to "clear" the employer's job order to recruit US workers within the state and selected other states, receive employer recruitment reports, and issue or deny the certification sought at least 30 days before the employer's need date.

SWAs refer workers to employers and monitor their recruitment, inspect the housing offered to US and H-2A workers, and conduct the prevailing wage and practice studies that are used to determine whether the employer's job order satisfies minimum regulations. SWAs are reimbursed for these activities by DOL via an annual grant.

DOL issued a TEGL (Training and Employment Guidance Letter) on November 6, 2007 instructing SWAs to reduce the recruitment required of employers, to verify the legal status of US workers they refer to fill jobs for whom H-2A workers are sought, and to inspect the housing employers are required to offer as early in the application process as possible. The TEGL, slightly modified on November 14, 2007, drew protests from farm worker advocates.

SWAs post the job openings for which H-2A workers are sought, and employers advertise in local newspapers and on the radio to recruit US workers- their job orders are sent to neighboring states and traditional areas of worker recruitment. In most cases, the name of the employer offering the job is suppressed, which means that US workers interested in the advertised jobs must report to their local SWA, register, and be referred to the employer for a hiring interview. In some states, SWAs call the employer on behalf of the worker, while in others the SWA issues a referral notice that the worker takes to the employer for the interview.

In some cases, it is hard for interested workers to contact the employer for an in-person or telephone interview, especially if the employer is an association that hires all workers through one site in a state. The TEGL says that employers do not have to have some one available at all times to interview workers, even during the recruitment period, and advises them to have an answering machine to accept inquiries from workers.

The first TEGL seemed to end the requirement that the employer advertise for workers outside the immediate area in which the H-2A workers will be employed unless there are significant numbers of workers from that area. This prompted Representative George Miller (D-CA) to assert that DOL does not have the authority to end out-of-state recruitment in neighboring states and traditional recruitment areas, including California, Florida, Puerto Rico and Texas. DOL later clarified that it "may require" out-of-state recruitment by farmers seeking certification to employ H-2A workers if SWAs determine that US workers are available in out-of-state areas.

Worker advocates noted that farm employers who are willing to recruit H-2A workers in other countries should be willing to recruit US workers in other states. They emphasized that, if US employers made the same efforts to recruit inside the US, which include having agents find workers, arrange their transportation to US consulates to get visas and then to the US work site, they could likely find far more US workers. By ending the requirement that US employers recruit in other states, the TEGL implicitly relieves employers of the burden of providing free housing to US workers, since out-of-area US workers as well as H-2A workers must be provided with such housing.

Miller also asked DOL to explain why it does not make H-2A applications public. The Virginia SWA scans and posts online the H-2A applications it receives http://www.vec.virginia.gov/vecportal/employer/ruralservices.cfm); most other SWAs treat the H-2A applications as confidential. In most job banks, the only low-wage jobs for which the employer is not named are the H-2A jobs.

The November 2007 TEGL requires SWAs to refer only "eligible" US workers to jobs for which the employer seeks certification to use H-2A workers. The TEGL "strongly recommends" that SWAs use the E-verify or Basic Pilot system operated by DHS's USCIS to verify the legal status of workers seeking referral, and to send proof of the worker's legal status to the employer. SWAs were given until December 15, 2007 to comply with the new requirements.

Most SWAs now check the legal status of workers seeking services by asking if they are US citizens or legally authorized workers; if they are not citizens, SWAs normally request documentation of legal status. Thus, many states believe they are complying with the TEGL, and many said they would not use E-Verify because it is not supposed to be used until a worker is hired to avoid discrimination based on errors in the database.

Worker advocates criticized the TEGL's call to use E-Verify by noting that DOL was imposing more hurdles for workers seeking H-2A jobs than for workers seeking other jobs. They also noted that the language relied on in the TEGL refers to MSFWs seeking services; non-MSFWs, they argued, can seek H-2A jobs even if they do not meet DOL's MSFW definition.

Employers stop recruiting US workers when their H-2A workers depart for the US, but their job order remains open (and employers are required to hire US workers who appear) until 50 percent of the contract period specified by the employer is completed. The TEGL instructs SWAs to avoid referring US workers to jobs where H-2A workers have departed for the US or are already employed- they could be displaced to make room for the US worker. Worker advocates objected, noting that the H-2A jobs often pay higher wages than other farm jobs, so that the TEGL is directing US workers to lower-wage farm jobs.

Employers of H-2A workers must provide inspected housing at no charge to H-2A and US workers who live beyond usual commuting distance. The TEGL encourages SWAs to inspect housing in a timely fashion and allows employers to substitute rental or other housing if the inspected housing becomes unavailable for reasons beyond the control of the employer.

When announcing its no-match enforcement strategy on August 10, 2007 (whose implementation was blocked by a federal judge), DHS and DOL cited "severe labor shortages" to justify a review of the H-2A program to provide "an orderly and timely flow of legal workers, while protecting the rights of laborers."

Worker advocates have begun suing DOL for its operation of the H-2A program and changes to it. In December 2007, they sued to gain access to the names of employers applying for H-2A certification. In January 2008, they sued to block the November 2007 TEGL, objecting both to the content of the TEGL and the way it changed current procedures administratively without seeking comments from those affected.

Complaints. The Chicago Tribune on November 11, 2007 profiled H-2A and H-2B workers in North Carolina, citing problems that range from being blacklisted for complaining about their jobs to high recruitment fees to lack of coordination among enforcement agencies.

North Carolina farmers paid H-2A workers at least $9.02 an hour in 2007, plus fees to labor recruiters and payroll taxes that add about $1.50 an hour. In exchange, they get workers who are bound to their farms. Many North Carolina farmers complain that the AEWR of $9.02 is too high--if they hired non-H-2A workers, most say they would have to pay $7 an hour.

In December 2007, labor contractor SAMCO and Marlin Ranching in Yuma, Arizona were sued for using the H-2A program in 2005-06 to harvest lemons rather than hiring US workers. DOL certified SAMCO-Marlin to employ 150 H-2A workers in June 2006. The suit on behalf of 212 US workers alleges that SAMCO set the wage below prevailing wages to discourage US workers, and did not try to rehire them, and seeks $500 for each worker.

In 2005, 30 Thai workers were taken to New Orleans by a North Carolina-based contractor, housed in a condemned hotel and shown guns to keep them from running away. After being returned to a North Carolina farm, some escaped, and eventually some received T-visas for their help in prosecuting their employer.

Advocates submitted complaints about Idaho-based Evergreen Forestry Services, asking DOL to bar the firm from being certified to employ H-2B workers for reforestry work. In September 2002, 14 H-2B workers employed by Evergreen were killed in Maine when the van in which they were riding overturned. DOL fined Evergreen $17,000, and revoked the contractor's licenses of Evergreen and its president, Peter Smith in July 2003. However, Evergreen was certified to employ H-2B workers in 2005, as it fought the fines and license revocation.

Wages paid to H-2A workers are exempt from Social Security and Medicare taxes and federal and state income taxes; in many states, H-2A wages are not subject to UI taxes.

Guernsey's article concludes that DOL routinely certifies farm employers to fill jobs with H-2A workers even if the employers did not demonstrate there was a shortage of US workers, and that the presence of the H-2A workers would not adversely affect US farm workers. She also criticizes US unions, such as the Ohio-based FLOC, for organizing H-2A workers in a top-down fashion without elections.

Numbers. Some 21 Washington growers were certified to hire H-2A workers to fill 1,657 jobs in FY07, and at least 1,240 H-2A workers came to the state, up from 814 jobs certified and 515 H-2A workers in FY06. In FY07, some 31 employers applied for H-2A workers, up from 16 in FY06. About 26,000 workers are hired for Washington's cherry harvest and 42,000 for the apple harvest.

McDougall and Sons, based in Wenatchee, Washington, was reportedly spending $1 million to build 114 beds for farm workers so that it could employ H-2A workers.

In California, Tanimura & Antle sought certification to fill 216 lettuce jobs with H-2A workers in Imperial and Yuma counties in Fall 2007, Fresh Express sought certification for 380 lettuce and broccoli harvesters and 20 machine operators, and Foothill Packing sought certification for 275 lettuce and cabbage harvesters. In each case, CRLA questioned whether these employers included sufficient information about the benefits of the jobs. OFLC concluded that the company's fliers, while not detailing all of the benefits, were sufficient to satisfy H-2A regulations.

The Honduran ambassador to the US visited the Fresno area in October 2007, meeting with a group of agricultural organizations called the Ag Labor Network to discuss bringing workers to the area under the H-2A program. The Network, formed by several ag associations, plans to manage H-2A workers in a way that would assure them full employment while in the US.

H-2B. Temporary help firm Louisiana-based Baystone Contractors requested certification to bring 6,000 H-2B workers into southeast Texas to repair ships beginning October 1, 2007 for $15 an hour. Baystone had no jobs to offer the foreign workers, but listed the names of several firms where it said the H-2B workers would work- the firms said they had no contact with Baystone, and pay workers more than $15 an hour.

According to Baystone's lawyer, Baystone thought that, "once the workers are here, they'll find them jobs." The workers were to come from the Philippines, India and Mexico.

The Texas Workforce Commission allowed Baystone to advertise for local workers, and unions responded with a flood of applicants. Baystone did not respond to these US workers, and canceled the firm's H-2B application. Baystone blamed H&W Welding, another Louisiana-based staffing firm, that said they merely told Baystone that if it had H-2B workers, it could place some of them.

Brickman Group, a national landscaping firm based in Maryland, was found to have underpaid H-2B landscaping workers because it deducted from wages visa costs, labor broker fees and transportation expenses. Employers may deduct such costs, but only during the first week of employment, and only if the deductions do not reduce wages below the minimum.

In the Brickman case, the judge found that the migrant-paid fees of $450 to $1,000 each were primarily for the benefit of the employer. Brickman had argued that the employment-related costs it must pay were limited to work tools; the judge found that obtaining legal documentation and travel were also core employment-related costs.

"Ag workers group suing for more details on guest workers," Associated Press, December 13, 2007. L.M. Sixel, "Bid for visas raises doubts," Houston Chronicle, December 1, 2007. Stephen Franklin and Darnell Little, "When guest equals ghost," Chicago Tribune, November 11, 2007. Dennis Pollock, "Ag leaders look south for workers," Fresno Bee, October 30, 2007. Guernsey, Alison K. 2007. Double Denial: How Both the DOL and Organized Labor Fail Domestic Agricultural Workers in the Face of H-2A. Iowa Law Review. No 1.


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