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July 2017, Volume 23, Number 3

H-2A; H-2B

The Promoting Agricultural and Rural Prosperity in America executive order of April 25, 2017 instructed agencies to study several issues, including how to ensure access to a reliable workforce for agriculture and related industries. President Trump assured farmers in private meetings that they would have "plenty of access" to foreign workers, and USDA Secretary Sonny Perdue has emphasized the need for a "reliable supply of agricultural workers."

In an interview with the Economist in May 2017, President Trump said: "we're going to have work visas for the farm workers? we have a lot of people coming through the border, they're great people and they work on the farms and then they go back home. We like those people a lot and we want them to continue to come in."

The US issued 108,100 visas to H-2A workers in FY15, 94 percent to Mexicans. The next largest countries of origin were Jamaica (4,600) and Canada (3,800), followed by South Africa (1,900), Guatemala (1,400), and Peru (1,000). Some Canadians entering the US as H-2A workers do not need visas.

DHS admissions data, especially for Mexicans, can be misleading because some Mexican H-2A workers live in Mexico and commute daily to jobs in California and Arizona. DHS counts each entry as an admission, explaining why 102,200 H-2A visas granted to Mexicans in FY15 generated almost 269,000 H-2A admissions.

The San Francisco Fed's contribution to the so-called Beige Book in May 2017 said: "Recent changes in immigration policy created substantial labor supply shortages for low-skilled workers in the agriculture sector. As a consequence, some growers discarded portions of their harvest." No examples were provided.

The Los Angeles Times on May 25, 2017 reported on the increased usage of H-2A workers in California. The story focused on Mexican workers who aimed to maximize their savings by working in the US up to 10 months; most of the H-2A visa holders emphasized that they could earn far more in the US than in Mexico. Advocates noted that some employers abuse H-2A workers, charging them fees or kickbacks.

Hiring H-2A workers begins with having the need for guest workers certified by the US Department of Labor, which checks on employer recruitment of US workers, housing for guest workers, and payment of the Adverse Effect Wage Rate. DOL approved 97 percent of employer requests between 2012 and 2015, and debarred about 100 employers from the H-2A program for violations of program rules.

Fresh Harvest brought 120 Mexican H-2A guest workers to Porterville Citrus in 2016-17, introducing the H-2A program into San Joaquin Valley citrus and housing them in a Porterville motel. Fresh Harvest is the third largest H-2A employer in the US, after the NCGA and WAFLA, and places most of its H-2A workers on desert and coastal vegetable farms.

New Mexico's Carrillo Farm Labor LLC refused to hire US workers in order to hire H-2A onion harvesters, prompting a settlement in May 2017 that involves a $5,000 penalty and $44,000 in back wages.

AWPA. Senator Dianne Feinstein (D-CA), saying that "there aren't enough [farm] workers," introduced the Agricultural Worker Program Act (S 1034) in May 2017 to give unauthorized foreigners who did at least 100 days of farm work in the past two years an opportunity to earn lawful "blue card" status that could be converted into an immigrant visa after three years of working at least 150 days a year in agriculture or five years of 100 days a year of continued farm work.

Joining Feinstein to urge approval of S 1034 was Shah Kazemi, CEO of Monterey Mushrooms, which has operations in California, Florida, Illinois, Pennsylvania, Tennessee and Texas. Kazemi said that the mushroom industry tried and failed to machine harvest fresh mushrooms, finding that bruising leads to discoloration.

Bills pending in the House would allow dairies and other farmers offering year-round jobs to employ H-2A guest workers. The Defending the Agricultural Industry's Requirements Year-round Act (HR 2087) would grant 18-month renewable H-2A visas to foreigners employed on dairy farms. The Family Farm Relief Act of 2017 (HR 281) would grant three-year H-2A visas and transfer the determination of whether farm employers need guest workers from DOL to USDA. Similar bills introduced in 2011, the H-2A Improvement Act (S852) and S1697, the Dairy and Sheep H?2A Act (DASH), were not enacted.

President Trump discussed a new agricultural worker program with Mexican President Pena Nieto during the G-20 meeting in Hamburg in July 2017. They "agreed to explore new mechanisms for Mexican agricultural workers to work in the US."

H-2B. The federal government funding law enacted in May 2017 allows DHS, in consultation with DOL, to admit up to 129,547 H-2B workers in FY17, the highest number admitted when H-2B workers who previously worked in the US were exempt from the 66,000 a year cap. Some 130,000 H-2B visas were issued in FY07, when a similar returning worker rule was in effect.

DOL is prohibited from enforcing several regulations related to the H-2B program, including monitoring employer efforts to recruit US workers.

Car-free Mackinac Island is a summer resort that relies on 3,000 seasonal workers, a third guest workers, to care for summer guests. Complaints of labor shortages in June 2017 led Congressional representatives to urge DHS to increase the number of H-2B visas available. Employers such as those in Mackinac have become accustomed to temporary foreign workers being available, and argue that Americans do not want to work in remote areas for the wages they can afford to pay.

The US Chamber of Commerce, saying that "many American businesses could not function without the H-2B program," urged DHS to quickly make more H-2B visas available, citing a study that found adding 100 H-2B workers in an area increased overall employment by 464. The H-2B Workforce Coalition in June 2017 asserted that foreigners were needed because the "work can be backbreaking."

DHS announced in June 2017 that it would increase the number of H-2B visas, but did not indicate how many additional visas would be made available. It could release an additional 70,000 H-2B visas.

GAO. GAO reviewed the operation of the H-2A and H-2B programs between FY09 and FY13 to assess protections of guest workers. Some 250,000 visas were issued to guest workers under both programs during these five years; 94 percent of H-2A visas and 71 percent of H-2B visas went to Mexicans. Over 55 percent of H-2A visa holders entered more than one year during the five-year study period, and 43 percent of H-2B visa holders.

DOL collects the occupation of workers using the 840-occupation SOC grouped into 23 major categories, but USCIS uses a different 83-occupation classification system with 15 broad categories.

About 44 percent of employers requesting H-2A and H-2B workers during the five-year study period indicated that they would use a recruiter to find guest workers. GAO found that there are often multiple layers between employers and workers, with each intermediary adding to costs, and some taking money from workers. Some workers borrow money to pay recruitment fees, which can lead to debt bondage, as worker debts mount faster than they can be repaid.

Employers identify their recruiters, but the names of recruiters are not made public.

Enforcement data are hard to interpret. DOL's WHD found 866 H-2A employers and 60 H-2B employers had violated one or more protective worker regulations over the five-year study period. Three-fourths of the H-2A employers with violations were assessed back wages or civil money penalties, as were 85 percent of the H-2B violators.

The HHS-funded National Human Trafficking Resource Center reported 1,400 complaints from H-2A and H-2B workers alleging violations of regulations between 2011 and 2013, with twice as many from H-2B workers as H-2A workers; a third dealt with pay violations. Some 135 worker complaints were possible trafficking, and 35 from agriculture, landscaping, and carnivals included allegations of force, fraud or coercion.

It is very hard to detect debarred employers, especially if they form new firms. GAO found that DOL captures information on employers requesting guest workers, but does not share all of its employer data with DHS and DOS, making it harder for other agencies to detect debarred employers.

GAO. 2015. H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Worker. March 6. http://www.gao.gov/products/GAO-15-154