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October 2016, Volume 22, Number 4

H-2A, H-2B, Braceros

The H-2A guest worker program continues to expand. Some 140,000 farm jobs were certified to be filled by H-2A workers in FY15, and almost 135,000 were certified in the first nine months of FY16. The largest 13 employers who each requested 600 or more certifications accounted for seven percent of the total in FY15; the largest 290 who each requested 100 or more accounted for 41 percent of the total.

The US Department of State issued over 108,000 H-2A visas in FY15, up from 8,400 in FY95.

There were 10,000 employer requests in the first nine months of FY16 for H-2A workers (some employers filed multiple requests). The mean and median request for the 9,500 employers with days of work data was to employ H-2A workers for 170 days, which is 34 five-day weeks or 28 six-day weeks. The range in the duration of jobs was from seven to 365 days.

Average UI-covered employment or the number of year-round jobs in US agriculture is about 1.3 million, including a million in crops. Average employment (the number of full-time equivalent jobs) has been rising over the past two decades, by about 90,000 in the US between 2005 and 2015 to almost 1.3 million, and by 40,000 in California to 420,000 in 2015 (NAICS 11). California accounts for a third of average US farm employment.

Since most H-2A workers are employed in crops for 10 months, H-2A workers are filling over 10 percent of the long-season jobs on US crop farms.

Many of the largest employers of H-2A workers are associations and farm labor contractors. Associations that recruit workers in Mexico, bring them into the US, and deploy them to member farmers can act: (1) as agents for employers; or (2) be joint employers with the farmers where H-2A workers are employed. The two largest associations, North Carolina Growers (NCGA) and the Washington Farm Labor Association (WAFLA), are joint employers with the farmers where the H-2A workers they bring into the US are employed.

Farm labor contractors seeking certification to employ H-2A workers must submit documentation of their arrangements to provide workers to farmers, but it is not clear whether FLCs must have written contracts with their farmer clients and provide copies of these contracts to DOL to be certified.

The share of H-2A workers provided to farmers through FLCs and associations varies by state. In California, Florida, and Georgia, over half of H-2A workers are provided by FLCs. In North Carolina and Washington, associations that act as joint employers with the farmers where they place H-2A workers account for 60 percent or more of H-2A jobs certified.

The American Farm Bureau Federation has been critical of DOL's administration of the H-2A program, saying that agriculture needs "a simplified H-2A program that allows farmers and ranchers to bring reliable help here to harvest, as well as to utilize experienced undocumented workers who have been here for years and have become parts of family farms."

On the other hand, the GAO in 2014 issued a report calling for more protections for H-2A workers. GAO reported that the number of H-2A visas issued by DOS rose from 60,100 in FY09 to 74,200 in FY13, that 94 percent of H-2A visas were issued to Mexicans, and that 96 percent of H-2A visa holders were men under 40. Between FY09 and FY13, a sixth of H-2A workers worked in the US in each of the five years covered by the report.

GAO found that most farm employers use current H-2A workers to find additional H-2A workers, but 45 percent reported using recruiters in Mexico, especially when they first began to hire H-2A workers. Regardless of the recruitment method used, GAO found that many workers had to pay fees and did not obtain complete information on their US jobs.

DOL investigated 866 H-2A employers between FY09 and FY13, and found violations that resulted in civil money penalties and back wages due to workers at three-fourths of these employers. DOL reported few complaints from H-2A workers.

Nebraska's Daniels Produce in August 2016 agreed to pay $250,000 in back wages to 89 Mexican H-2A workers, and to pay $20,000 in civil money penalties for failing to keep accurate payroll records in 2011-12. Daniels admitted that it manipulated records of hours worked so that it appeared that H-2A workers earned more per hour than they really did, which Daniels justified due to the "bureaucratic nightmare" of H-2A regulations.

Direct Hires. There are two kinds of workers on crop farms, those hired directly by farmers (NAICS 111) and those brought to farms by crop support services, mostly FLCs (NAICS 1151). Average employment of directly hired crop workers has remained stable at 560,000 across the US and 176,000 in CA in 2015.

Average crop support service employment has been rising, to 324,000 in the US and 209,000 in California, that is, two-thirds of average crop support service employment is in California. Washington provides a contrasting picture. Average employment rose by 19,000 to 102,000 in 2015, with a peak of 140,000 in June; Washington accounts for eight percent of average US farm employment. Average direct-hire crop employment rose by 14,000 to 68,000 in 2015, with a peak of 97,000 in June, while average crop support service employment rose by 7,000 to 20,000.

Average farm employment has fallen in some states. In Florida, farm employment fell from 93,000 to 76,000 between 2005 and 2015; farm employment peaked at 92,000 in January 2015. The drop in average crop support service employment, down 9,000 to an average 16,400 in 2015, was larger than the drop in direct-hire crop employment, down 7,000 to 49,000. In Florida, there are three direct-hire workers for each crop support worker.

Texas also has declining farm employment, down 5,000 over a decade to 60,000 in 2015, when employment peaked at 62,000 in October-November; Texas had five percent of average US farm employment. Direct-hire crop employment averaged 22,000 in 2015, crop support service employment 9,500, and animal service employment was 24,000.

These data suggest three major conclusions. First, the four states of California, Washington, Florida, and Texas account for over half of average UI-covered agricultural employment. Two have rising farm employment, California and Washington, and two have declining farm employment, Florida and Texas.

Second, there is a contrast between California and Washington. In California, the growth in farm employment is due to crop support service firms bringing workers to farms, while in Washington farm employment growth is mostly direct hires. In Florida and Texas, where there are two or three directly hired workers for each crop support service worker, the average employment of crop support workers is declining faster than direct hires.

Third, the expanding H-2A program is different in each state. In Florida, where two-thirds of the 18,000 jobs certified to be filled by H-2A workers are with FLCs, H-2A employment is 70 percent of the average 16,400 crop support service jobs in the state. Georgia and North Carolina are similar, with H-2A jobs a large share of crop support service employment.

In Washington, where two-thirds of the 12,000 jobs certified are with WFLA, a joint employer with farmers, H-2As are about one percent of average 20,000 crop support services employment. In California, where half of the 8,600 jobs certified are with FLCs, H-2A employment is about two percent of crop support services employment, reflecting the high share of the state's crop workers brought to farms by crop support service firms.

Braceros. PL-78, signed in July 1951, authorized the renewal of the Bracero program that began when the Mexican Farm Labor Agreement was signed August 9, 1942. The Mexican government in the early 1950s wanted the US government to impose sanctions on US employers who hired unauthorized workers to deter Mexicans from leaving illegally for the US. In response, Congress in 1952 made the "harboring" of unauthorized workers a felony, but the so-called Texas proviso exempted employment from the definition of harboring.

The number of Mexican Braceros rose in the 1950s, peaking at 445,200 in 1956 and remained above 400,000 a year until 1960. In 1955, half of the Braceros admitted were in Texas and a quarter in California; by 1959, 45 percent were in Texas and a third were in California.

DOL appointed consultants to review its administration of the Bracero program. The 1959 consultants report noted that DOL succeeded in allowing farmers to hire Braceros, but not in protecting US workers from the adverse effects of Braceros. Defining adverse effects proved difficult because the lack of US workers that led to Braceros should have increased wages and effectuated labor-saving changes. Instead, the availability of Braceros in the fields held down wages and prompted growers to shift work from higher-wage packinghouses to lower-wage fields where Braceros could be employed.

The report emphasized that many Braceros were employed in commodities that were in surplus. About half worked in cotton during the 1950s, where piece-rate wages did not increase. In Bracero-dominated fruits and vegetables in California, normal market forces did not push up wages from year-to-year.

The report emphasized that Mexican Braceros had more benefits and guarantees than US workers, including a requirement that employers pay transportation costs from Mexico to the place of work, a guarantee of work for three-fourths of the contract period, employer-paid housing, and wage guarantees. Employers were not required to pay transportation or provide work guarantees for US workers.

The 1959 report recommended that the Bracero program be continued, but that DOL require US farmers to try to recruit US workers and to set minimum wages for US and Bracero workers that protect US workers from the adverse effects of foreign workers.

General Accountability Office. 2015. H-2A and H-2B Visa Programs. March 6.

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