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July 2016, Volume 22, Number 3

H-2A; H-2B

The H-2A program continues to expand. In FY15, DOL certified 140,000 jobs to be filled with H-2A workers, including 66,000 in the first two quarters. In the first two quarters of FY16, DOL certified 75,000 jobs.

California had 8,600 H-2A jobs certified to be filled with H-2A workers in FY15, and 5,400 in the first half of FY16, suggesting a new record for the state. California's largest employer of H-2A workers is Fresh Harvest (Scaroni), followed by Elkhorn Packing and T&A.

Foothill Packing, also a major California employer of H-2A workers, in June 2016 agreed to pay $235,000 in back wages and penalties for replacing US workers in 2013 with H-2A workers. Foothill said that the US workers, who were picking lemons, did not satisfy its productivity standards, but DOL found that they picked faster than the H-2A workers. Foothill presumably made a commitment to the H-2A workers, and did not want to return them to Mexico to make room for the US workers.

The House Subcommittee on Biotechnology, Horticulture and Research held a hearing April 27, 2016 that featured witnesses criticizing delays in obtaining H-2A workers, saying that DOL is taking double the usual 15 days to certify farmer requests for guest workers.

H-2B. There are 66,000 H-2B visas available for new foreign workers coming to the US to fill seasonal nonfarm jobs. Individuals who worked in the US with H-2B visas in FY13, FY14 and FY15 are exempt from the cap.

By exempting returning H-2B workers, the number employed in the US could double. An exemption for returning H-2B workers was approved by the House in the DHS funding bill for FY17 in June 2016.

Sauerkraut producer GLK Foods LLC hired 200 Mexican workers in 2010-11 to core and trim cabbage at Bear Creek, Wisconsin, but failed to provide these H-2B visa holders with written terms of employment and unlawfully deducted food and housing costs from their wages. GLK also failed to pay the workers' inbound and return transportation when it terminated their employment earlier than planned due to weather in 2010 and when DOL raised the wage that must be paid in 2011. A federal judge in May 2016 found GLK liable, and ordered more investigation to determine the extent of damages.

Virginia-based MasLabor says it is the largest US provider of H-2A and H-2B workers.

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