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October 2017, Volume 23, Number 4

H-2A; H-2B

US Department of Labor (DOL) certified 165,000 farm jobs to be filled with H-2A workers in FY16, and is expected to certify over 200,000 jobs in FY17. The US Department of State (DOS) issued 134,400 visas to H-2A workers in FY16, up from 108,100 in FY15 and 55,400 in FY11.

DOL does not generate estimates of the weeks of farm work done by H-2A workers or wages earned by H-2A workers. An analysis of FY12 data, when DOL certified 85,248 jobs to be filled by H-2A workers, found that the 5,400 employers who were certified offered an average 33 weeks of employment for an average 43 hours a week to H-2A workers. If weeks of US employment are multiplied by the number of workers requested by each employer, the average number of weeks drops to 26, reflecting the fact that several hundred employers offer 52-week sheepherder jobs to relatively few workers.

The average AEWR in FY17 was $12.20 an hour or $525 for a 43-hour week. Over 26 weeks, an H-2A worker would earn $13,650 and 100,000 H-2A workers would earn $1.36 billion. If 150,000 H-2A workers are in the US in FY17, their total earnings would be about $2 billion.

DOL sued G Farms of El Mirage, Arizona for housing 69 Mexican H-2A workers in substandard housing and not paying them the AEWR of $10.95 an hour. Santiago Gonzalez grows watermelons and onions near Phoenix, and said he fixed housing problems as soon as DOL notified him of them, making DOL's suit unnecessary. Gonzalez admitted that some H-2A workers did not receive the AEWR when they began to work because they were learning how to do the job; G Farms paid piece rates to harvest onions of $0.13 to $0.70 a bag.

House. The House Appropriations Committee on July 18, 2017 approved an amendment by Rep. Dan Newhouse (R-WA) to the DHS appropriations bill to allow farmers who offer year-round jobs to employ H-2A workers in FY18. Under current law, jobs filled by H-2A workers must be temporary or seasonal, generally defined as lasting less than 10 months, with an exception for sheepherders, who can remain in the US up to three years.

The major beneficiary of the Newhouse amendment may be the dairy industry, which wants labor insurance in the event of enforcement. There are 120,000 hired workers employed on US dairies, and perhaps a third or 40,000 are unauthorized. Dairy farmers near US borders, as in New York and Vermont, complain that the expanded Border Patrol harasses and arrests unauthorized dairy workers. If the seasonal requirement is eliminated and there is no stepped up enforcement, perhaps 5,000 additional H-2A workers could enter the US under the Newhouse amendment.

Another Newhouse amendment to the USDA appropriations bill would allow H-2A workers to be housed in buildings that received some USDA loans. Such housing is now reserved for US workers.

The Paperwork Reduction for Farmers Act, S 1578, would allow H-2A guest workers to be employed in year-round jobs, eliminate requirements that employers submit new applications for each group of workers requested, and allow associations of employers to recruit H-2A workers without being jointly liable for labor law violations on particular farms.

Democrats and the UFW continue to push the Agricultural Worker Program Act (HR 2690, S 1034), which would provide a blue card to unauthorized workers who did at least 100 days of farm work in the past two years. Blue-card holders could become immigrants if they did another 100 days of farm work a year for the next five years or 150 days a year for the next three years.

H-2B. DHS released an additional 15,000 H-2B visas in July 2017, but employers requested only 13,500 of these additional visas before the end of FY17. Some 66,000 H-2B visas a year are available each year, half for the winter season and half for summer. These regular visas have been taken, and Congress authorized DHS to issue up to 70,000 more.

Employers seeking the 15,000 additional visas had to show that they tried and failed to find US workers and attest that their businesses would suffer "permanent and severe financial loss" without H-2B workers. Some US employers said that DHS acted too late for them to apply for additional visas in 2017.

The New York Times on June 23, 2017 profiled Mexicans in Tlapacoyan, Veracruz, about 200 miles east of Mexico City, waiting for H-2B visas. About two-thirds of the 7,000 H-2B workers hired to work in US carnivals are from 60,000-resident Tlapacoyan. The story emphasized the importance of working seasonally in the US to the Tlapacoyan economy. Several workers reported earning $75 a week while waiting in Mexico for H-2B visas, a quarter of their US wages of $300 a week.

The JKJ Workforce agency of Harlingen, Texas uses the mayor of Tlapacoyan to register potential H-2B workers; workers pay the mayor a fee, which is not permitted by H-2B regulations. A union linked to JKJ was deemed a sham by the NLRB in 2015 after being sued by Friends of Farmworkers. The union collected dues from H-2B workers but did not represent them effectively.

J-1. The J-1 exchange visitor program includes 15 subcategories, including five that allow foreign visitors to work in the US: summer work, au pairs, interns, trainees and camp counselors. Under one of these five J-1 work programs, over 100,000 students who are enrolled in universities in their countries of citizenship fill seasonal US jobs for employers who do not have to try to recruit US workers.

The Trump administration in August 2017 was reportedly considering tightening regulations on J-1 workers.