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January 2018, Volume 24, Number 1

H-2A; H-2B

DOL certified 200,049 jobs to be filled with H-2A workers in FY17, up over 20 percent from 165,000 in FY16. The five leading H-2A states accounted for 52 percent of H-2A jobs certified: Florida, 13 percent; Georgia, 12, percent; North Carolina, 10 percent; Washington, nine percent; and California, eight percent.

The top five H-2A employers accounted for 30,000 H-2A jobs, including NCGA with 12,000 jobs certified; WAFLA, 7,100; Fresh Harvest, 4,600; Zirkle, 3,000; and Elkhorn, 2,700. The leading commodities were berries, 22,000; apples 12,700; and tobacco, 12,500.

Most H-2A workers are in the US less than the usual 10-month maximum stay. The best estimate is that the average H-2A worker is in the US six months, so that 200,000 jobs certified means about 100,000 or 10 percent of the average one million full-year equivalent jobs in US crop agriculture were filled by H-2A workers in 2017.

US employers are allowed to recruit H-2A and H-2B workers in over 80 countries. Haiti was removed from the list of eligible countries in January 2018 after DHS reported that they had high levels of overstaying, 40 percent in FY16. PTP Consulting helped to match Haitian workers with US farmers to provide jobs and remittances to assist in the rebuilding of Haiti after its 2010 earthquake. Belize and Samoa were also removed from the eligibility list.

Legal and mostly Mexican-born H-2A workers are younger than the older Mexican-born unauthorized workers who dominate the crop workforce surveyed by the NAWS. One association reported that the average age of the H-2A workers brought into the US was 32, while the NAWS reported 38.

HR 4092. The House Judiciary Committee approved the Agricultural Guestworker Act (HR 4092) on a 17-16 vote on October 25, 2017. Most Republicans supported the AG Act; all Democrats opposed it. Rep. Bob Goodlatte (R-VA), who became chair of the House Judiciary Committee in 2013, will retire from Congress in 2018.

HR 4092 would replace the current H-2A with a new H-2C program six months after enactment. It would allow up to 450,000 guest workers to be admitted each year, including 40,000 for meatpacking. The number of H-2C visas could rise by 10 percent in the next year if all visas were requested in the previous year. Currently unauthorized workers would have to return to their countries of origin and re-enter the US with H-2C visas.

Each H-2C visa is valid for three years and, with the number of visas allowed to increase by 10 percent a year, there could be 1.5 million H-2C visa holders in the US after three years.

Employers of H-2C workers, who could offer year-round farm or farm-related jobs in dairies, food processing and meatpacking, would attest to their need for guest workers after posting job vacancies with state workforce agencies. They would have to hire qualified US workers until the date that their guest workers departed for US jobs, down from the current requirement that employers hire qualified US workers who apply until 50 percent of the employer-specified work period is completed.

Employers of H-2C workers would not have to provide guest workers with free transportation to the US or housing while employed in the US. H-2C workers would be guaranteed work for half of the hours promised by employers, down from the current three-fourths guarantee.

In case of disputes, H-2C workers would have to seek intervention from the Federal Mediation and Conciliation Service before filing suits against their employers. H-2C workers would have to obtain health insurance to maintain their status, but would not be eligible for subsidies.

Employers would have to pay H-2C workers the higher of 115 percent of the federal, state or local minimum wage ($8.34 in states with the federal minimum wage of $7.25) or the actual wage earned by workers in similar jobs, and 150 percent of the federal minimum wage for H-2C workers in meatpacking or $10.88. The average AEWR in 2017 was $12.12 an hour.

USDA would administer the H-2C program. Employers would receive permission to recruit and employ H-2C workers by attesting that they need foreign workers and are abiding by program regulations.

Goodlatte's bill would withhold 10 percent of H-2C worker wages and repay them in the worker's country of origin at a US embassy, consulate or other US-approved place. H-2C worker wages could fall below the minimum wage if the reason was this mandatory wage withholding.

Goodlatte included HR 4092 in the Securing America's Future Act, HR 4760, introduced in January 2018. HR 4760 would increase border enforcement and give DACA recipients three-year renewable visas but not a path to US citizenship. It would also increase the number of immigrant visas available for skilled foreigners.

The House Judiciary Committee also approved the Legal Workforce Act (HR 3711) by a 20-10 vote to require all employers to use E-Verify to check the legal status of new hires. Individuals could "lock" their SSNs to prevent identity theft, and employers would have a safe harbor from fines for hiring unauthorized workers if they used E-Verify properly. E-Verify currently has a 0.3 percent error rate.

Colorado-based Crop Production Services refused to hire at least three US workers as seasonal technicians at its El Campo, Texas facility, and instead hired 15 H-2A workers. In December 2017, Crop Production paid $19,000 in back wages and a $10,500 fine for discriminating against US workers.

New York Times columnist Eduardo Porter October 25, 2017 reviewed the missing ingredient argument for guest workers, quoting those who say that each farm job supports two or three nonfarm jobs. Porter noted that increasing Miami's workforce by eight percent in 1980 did not seem to hurt Miami-area Blacks, and that states from which the Obama administration deported more unauthorized foreigners did not have faster wage and employment growth than states with fewer deportations (Arizona compared to West Virginia).

Other studies found that removing Mexicans in the early 1930s, or halting the arrival of Braceros in the 1950s, did not lead to faster wage and employment growth for US workers. Such research suggests that the Trump administration's plans to step up enforcement could hurt rather than help US workers, as disruptions due to deportations could lead to job losses rather than gains for US workers. On the other hand, not removing unauthorized workers could slow labor-saving mechanization.