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April 2013, Volume 19, Number 2

Guest Workers: H-2A; H-2B

The Wall Street Journal on March 11, 2013 reported on negotiations to revamp the H-2A and H-2B programs, both of which allow US employers unable to recruit US workers to hire foreign workers to fill seasonal jobs. The H-2A program is not capped, but there is a cap of 66,000 H-2B visas a year. About 65,000 H-2A and 50,000 H-2B visas were issued in 2012.

H-2A. Florida Citrus Mutual in March 2013 said that about half of the 2012-13 citrus crop was harvested with H-2A workers, up from 15 percent in 2007-08. However, FCM complained that the AEWR is too high; FCM wants the minimum wage that must be paid to H-2A workers the higher of the federal or state minimum wage.

The 2013 Adverse Effect Wage Rates announced January 8, 2013 drew opposition from western sheep ranchers. The AEWR is a monthly rate for sheepherders in western states, $750 a month plus room and board in the mountain states such as Colorado and Idaho, and $1,422.52 a month in California. Beginning in 2013, sheepherders in Arizona, Nevada, Oregon and Washington must be paid $1,422.52 a month.

DOL said that the $750 a month wage was based on a survey of sheepherder wages in Colorado, and the $1,422.52 a month wage on a survey in California.

The Wall Street Journal on April 12, 2013 reported that many of the 1,500 H-2A sheepherders from Peru, Chile and Mexico are running away from their employers to earn more in dairies and construction. Some sheep ranchers, who say they pay $3,000 in recruitment and airfare costs for Peruvian shepherds believe that farmers offering year-round jobs "poach" their H-2A workers.

The Western Range Association said that about 10 percent of the 900 H-2A shepherds that it brought into the US did not complete their contracts.

The farm price of lamb reached $2 a pound in 2011 due to reduced imports from Australia and New Zealand, encouraging many US ranchers to expand their flocks; imports provide half of US consumed lamb. Prices in 2012 fell sharply.

AEWRs in 2013 range from a low of $9.50 an hour in states such as Louisiana and Mississippi to $12.72 in Hawaii. The AEWR is $10.74 in California, and $9.68 in North Carolina, the state with the most H-2A workers.

Recruitment. A job fare at the US consulate in Nogales attracted 3,000 Mexicans interested in obtaining H-2A and H-2B visas to work in seasonal farm and nonfarm US jobs February 11, 2013.

The Centro de los Derechos del Migrante released a study in January 2013 that highlighted the problems faced by H-2A workers in Mexico during recruitment. Interviews with 220 workers found that 58 percent paid recruiting fees, an average $590, and many took out loans to pay expenses incurred to get H-2A visas. About 10 percent paid fees in Mexico for US jobs that did not materialize.

US law bars employers from charging foreign workers recruitment fees. However, guest workers who report the payment of fees often lose their US jobs and the collateral that they put up for loans to pay recruitment fees, such as a house or land, making them reluctant to complain about the fees.

Legislation. Representative Dennis Ross (R-FL) introduced the Legal Agricultural Workforce Act (HR 242) in January 2013, a bill that was first introduced by Representative Dan Lundgren (R-CA) in September 2011 http://dennisross.house.gov/news/documentsingle.aspx?DocumentID=316839). The "market-based" LAWA, to be administered by USDA, would grant an unlimited number of 10-month visas to foreigners who could move from one farm employer to another while in the US for up to 10 months each year.

Employers certified by USDA to hire guest workers would pay Social Security and the Federal Unemployment Insurance Taxes on the wages of W-visa workers to cover the cost of administering the LAWA. Guest workers workers would pay for their own transportation to the US and housing in the US, but would receive a refund of their Social Security contributions as an incentive to return.

The Washington DC-based the British West Indies Labour Organization Trust/Jamaica Central Labour Organization (BWILOT/JCLO) that supports Jamaican H-2A workers in the US was funded by a five percent fee deducted from the wages of Jamaican H-2A workers. DHS concluded in 2009 that the five-percent wage deduction was an unlawful recruitment fee, cutting off funds for BWILOT/JCLO in 2010 and 2011. The Canadian BWILOT/JCLO counterpart loaned the US office $1.3 million to maintain its operations.

H-2B. DOL in March 2013 announced that it was not going to make prevailing wage determinations for employers seeking certification to hire foreigners with H-2B visas after a federal judge prohibited DOL from using a 2008 methodology that the court and DOL agreed lowered wages. However, Congress prohibited DOL from spending funds to develop a new H-2B wage methodology until the end of FY13.

DOL in 2005 adopted the H-1B approach to prevailing wages for the H-2B program, that is, to use the average wages of workers at four skill levels in OES data to determine the prevailing wage that employers must pay. Over 95 percent of employer requests for H-2B workers specified the lowest skill level and wage. DOL in 2011 and the judge agreed that having almost all H-2B wages in the lowest-skill level did not protect US workers from adverse effects.

In a separate action, the US Court of Appeals for the Eleventh Circuit in April 2013 found that DOL lacked the authority to issue regulations governing the H-2B program. DOL issued regulations scheduled to take effect April 27, 2012 that would have returned the H-2B program to a certification model, as the program operated until the outgoing Bush Administration changed it to an attestation model in 2009.

Under the 2012 return to certification, DOL would have required employers to register to demonstrate their need for temporary workers employed less than nine months and to make assurances about wages and provide work guarantees. There would have been a separate application process to determine whether US workers were available to fill the jobs.

A report released in February 2013 noted that 5,000 foreigners enter the US each year with H-2B visas in order to work for employers in the carnival and fair industry. Workers are often promised an hourly wage but paid a weekly wage of about $300, and their hours, often 70 or 80 a week, are usually recorded by hand. As a result, many H-2B visa holders earn a low hourly wage.

The Chicago law firm of Hughes Socol Piers Resnick & Dym sued several Louisiana crawfish processors, including Riceland Crawfish, on behalf of Mexican H-2B workers who allege that they earned less than the federal minimum wage of $7.25 at Riceland's piece rates. Riceland reportedly hand-wrote the hours and units of work of its H-2B workers, making it hard to determine whether piece-rate workers earned at least the minimum wage as required.

Grand Isle Shipyard provided Filipino H-2B workers to an oil platform owned by Houston-based Black Elk Energy that exploded November 16, 2012, leaving three of the Filipino H-2B workers dead. Grand Isle executives formed several firms, including DNR Offshore and Crewing Services and D&R Resources, to offer contracts to the Filipino H-2B workers, and a separate firm, Thunder Enterprises, that allowed them to bring Filipinos into the US with E-2 investor visas.

Centro de los Derechos del Migrante. 2013. Taken for a Ride: Migrant Workers in the U.S. Fair and Carnival Industry. www.cdmigrante.org/