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July 2012, Volume 18, Number 3

Farm Labor Shortages, H-2A, H-2B

It is very hard to evaluate grower claims of labor shortage because the "need" for farm workers depends more on wages and prices than on nature. Farmers routinely do not harvest all of their fruits and vegetables because of low prices or low yields; if the price the farmer will receive does not cover harvesting costs, farmers will not harvest. Similarly, if yields are so low that workers, who are often paid piece rate wages, do not earn at least the minimum wage, there will be few pickers even if crops are ready to harvest. To bolster earnings, fields and orchards that were once harvested three or four times are now harvested once or twice to increase worker earnings.

Farmers producing perishable crops have economic incentives to request more workers sooner than they are truly needed because farm employers rarely pay for the time workers wait until crops are ready to harvest. Farm labor contractors and other intermediaries, on the other hand, have incentives to promise more workers than they have available to win the business of farmers. The contradictory incentives in this decentralized system, farmers requesting too many workers too soon and contractors promising too many workers too soon, practically guarantee labor shortage complaints from employers and unemployment for workers.

Farm work, especially seasonal harvesting, is a 10-year job for most workers, not a lifetime career. As soon as workers can find nonfarm jobs offering higher wages, easier or more hours of work, many leave the seasonal farm work force. They are typically replaced by newcomers, usually Mexican men between the ages of 18 and 22. The recent slowdown in Mexico-US migration has reduced the arrival of newcomers, one reason for the labor shortage complaints.

If net Mexico-US migration remains close to zero, will the US government allow farm employers to hire guest workers on terms similar to those of unauthorized workers? Farm employers would like an E-Z guest worker program, that is, reforms to the H-2A program to make it less costly to hire H-2A guest workers, such as ending the requirement to provide housing and reducing the super-minimum wage, the AEWR. Worker advocates are attempting to block such H-2A changes unless they are accompanied by legalization of at least some unauthorized workers.

H-2A. The H-2A generates many complaints from growers. Six senators complained on behalf of their constituents that the H-2A program is too difficult for farmers to use, especially because of the need to deal with three federal agencies, the US Department of Labor, Department of Homeland Security and the Department of State.

DOL responded that farmers requested certification to fill 78,759 jobs with H-2A workers in FY11, and 68,088 or 86 percent were certified, including 74 percent at least 30 days before the employer-specified start date.

Farm employers seeking DOL certification to fill jobs with H-2A workers must follow a process set out in law and regulation by completing ETA Form 750, Application for Alien Employment Certification, Part A, which spells out the job offer for which foreign workers are sought, including the start and end dates and the details of the job, wages, and working conditions. ( They also complete ETA Form 790, Agricultural and Food Processing Clearance Order, which provides more detailed information on the jobs, including piece rates, transportation and housing arrangements, and is used to recruit US workers. Form 750 is sometimes called the contract for the H-2A workers and Form 790 the recruitment tool for US workers.

Many farmer complaints deal with the requirement to try to recruit US workers. Farmers say they "know" qualified US workers are not available, and express frustration when their ads produce US applicants who they must hire and train. These US workers may not stay on the job, even as the experienced H-2A workers farmers prefer wait in Mexico or other countries. Farmers say that the US workers who respond to their ads "don't actually want to work."

Worker advocates counter that some farm employers are certified to employ H-2A workers despite the availability of US workers and that some farm employers violate the letter and spirit of H-2A regulations aimed at protecting US workers from the adverse impacts of H-2A workers, such as assigning H-2A workers to "better" fields or jobs.

The North Carolina Growers Association (NCGA) helps its 750 grower-members to obtain and employ H-2A workers. The NCGA complains that three steps are required to employ H-2A workers: labor certification from DOL after failed efforts to recruit US workers; a visa petition approved by DHS's US Citizenship and Immigration Service agency; and H-2A visas from DOS consulates abroad for the guest workers employers recruit.

NCGA says that its grower members obtain "reliable" and "dependable" H-2A workers who lose their legal right to be in the US if they lose their jobs. NCGA says that most of the H-2A workers it provides have worked in the US in previous years harvesting tobacco and vegetables, the major commodities grown by NCGA members. Some of these H-2A workers switch from harvesting tobacco to Christmas trees for six weeks before returning to Mexico.

H-2B. A federal judge in Florida blocked implementation of new H-2B rules, saying that DHS, not DOL, had final authority over H-2B regulations.

DOL in February 2012 issued regulations requiring employers to guarantee workers pay for three-fourths of the hours promised in any 12-week period, pay the same wages to US and H-2B workers engaged in "substantially the same work," pay visa costs and the transportation costs of H-2B workers to travel to the employer's workplace, and reduce the maximum period of US employment from 10 to nine months. The new regulations also prohibited employers from charging H-2B workers any recruitment fees.

DOL also changed the basis for the minimum wage that must be paid to H-2B workers from the federal or state minimum or prevailing wage, whichever is highest, to the minimum wage or the wage determined by the Occupational Employment Statistics survey of employers for a particular occupation.

Reports. The Global Workers Justice Alliance released a report in June 2012 that found little government oversight over the complex web of temporary worker visas. In addition to H-1 and H-2 visas, the report concluded that many employers hire foreign workers using B-1 visas for business visitors, F-1 visas for foreign students, J-1 visas for educational and cultural exchange visitors, and L-1 visas for intra-company transferees. Each program operates under different rules, making it hard to obtain an overview of how the programs interact.

The New Orleans-based National Guestworker Alliance in June 2012 reported that 18 Wal-Mart suppliers that employ guestworkers on H-2A and H-2B visas had hundreds of violations of safety, health, and wage and hour laws. The NGA said that "such extensive violations of fundamental minimum standards are very strong initial indicators of forced labor conditions" and called on Wal-Mart to police its suppliers. The NGA earlier in June 2012 charged that C.J.'s Seafood in Breaux Bridge, Louisiana engaged in "systematic violations of labor law and grossly inhumane treatment" of 50 to 60 H-2B workers, prompting Wal-Mart to suspend CJ's as a supplier of crawfish.

Sukthankar, Ashwini. 2012. Visas, Inc. Corporate Control and Policy Incoherence in the U.S. Temporary Foreign Labor System.

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