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April 2014, Volume 20, Number 2

H-2A; H-2B

Department of Labor certified 98,800 jobs to be filled with H-2A workers in FY13, and Department of State issued 74,200 H-2A visas. DOL certifications were up 20 percent in the first quarter of FY14.

In FY13, over 45 percent of DOL H-2A job certifications were in five states: North Carolina, 12,400; Florida, 10,000; Georgia, 9,300, Louisiana, 6,600; and Washington, 6,300. The three leading "employers" were associations that obtain H-2A workers for member growers, NCGA, 9,700 certifications; WFLA, 4,500; and VAGA, 1,500. The three largest farmers were Peri & Sons, 1,500 certifications; Zirkle Fruit, 1,200; and Sierra Cascade, 1,200.

The North Carolina Growers Association charges its farmer members $1,000 per H-2A worker.

DOL certified 82,300 jobs to be filled with H-2B workers in FY13, and DOS issued 57,600 H-2B visas. There is no limit on the number of H-2A visas that can be issued, but there is a 66,000 a year cap on H-2B visas.

In FY13, over 45 percent of DOL H-2B job certifications were in five states: Texas, 11,300; Florida, 6,200; Louisiana 4,200; Virginia, 4,100; and Maryland, 4,000. Five occupations accounted for two-thirds of all certifications: landscaping and grounds keeping, 31,300 jobs certified; forest and conservation workers, 9,600 jobs certified; amusement and recreation attendants, 5,800; maids and housecleaners, 5,600; and meat, poultry, and fish cutters, 3,100.

DHS in January 2014 announced that citizens of 63 countries are eligible to be recruited to work in the US under the H-2A and H-2B programs, including Mexico and most Latin American countries.

H-2A Cases. Global Horizons, the Beverly Hills-based firm that brought Thai H-2A workers to the US a decade ago after they had paid high fees in Thailand for US jobs, was found guilty in March 2014 of harassing, discriminating, and retaliating against them in Hawaii. A federal judge in Hawaii ruled that "the US Equal Employment Opportunity Commission has presented evidence that Global Horizons specifically chose Thai workers based on a stereotype that Thai workers would be more compliant and less likely to escape or cause other problems" because they arrived in the US in debt.

A trial is set for November 2014 to determine damages. Five of the six farms where Global Horizons placed H-2A workers, including Del Monte Fresh Produce, settled the EEOC charges. Negotiations with the Maui Pineapple Company were ongoing in spring 2014.

The EEOC sued Global Horizons and six farms in Hawaii in April 2011, alleging a pattern and practice of national origin and race discrimination, harassment and retaliation against Thai H-2A workers. The US Department of Justice originally charged Global Horizons with human trafficking, but in 2012 asked that the trafficking charges be dismissed. A similar EEOC suit against Global Horizons in Washington state is scheduled to go to trial in September 2014.

Mercer Canyons, a vegetable and grape grower in Yakima, was sued in March 2014 by several US workers who alleged that they were told no work was available even though Mercer was requesting H-2A workers. Mercer hired 19 H-2A workers in 2013. The workers who sued said that they had worked at Mercer in 2012 and were not recalled in 2013, and filed a class-action suit that they said could involve 150 workers.

Six farm workers were allowed in April 2014 to sue Agri-Placements International (www.agri-placements.com) and Yoakum county Cooperative Gin in Texas for conspiring to hire H-2A workers and not US workers. The six workers said that the H-2A workers were paid only the federal minimum wage of $7.25 rather than the $9.27 per hour adverse effect wage rate (AEWR), and that they were discharged after complaining about the low wage.

H-2B. The H-2B program allows US employers to fill seasonal nonfarm jobs with seasonal foreign workers. There are 66,000 H-2B visas a year available, and US employers can apply for H-2B workers up to six months before they are needed. Employers in Texas in recent years have requested the most H-2B workers, 11,000, followed by Virginia with 9,000. Landscaper is the leading occupation, accounting for 30,800 jobs, followed by about 5,000 each for amusement parks, forestry workers, and housekeepers and maids.

Employers must pay H-2B workers the higher of the minimum or prevailing wage for the occupation in which they are employed.

DOL in July 2013 announced that it was delaying a new methodology for calculating the prevailing wage that employers must pay to H-2B guest workers. A federal judge struck down the 2008 methodology introduced by the outgoing Bush administration, but Congress barred DOL from spending money to implement a new wage methodology.

Five Mexican H-2B workers sued Pure Forest LLC in April 2014, alleging that the Christmas tree grower promised them $16.47 an hour and 40 hours of work a week and good working and housing conditions, but they were provided with tents and sleeping bags and given no training. The workers allege that Pure Forest supervisors carried guns and threatened them, forcing them to work more than eight hours a day.

The workers, who sued under the Trafficking Victims Protection Act and the Migrant and Seasonal Agricultural Worker Protection Act, said that they were paid the promised wage, hourly but after deductions received far less take home pay than expected.


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