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July 2018, Volume 24, Number 3

H-2A; H-2B

President Trump, speaking in Michigan April 28, 2018, said "For the farmers, OK, it's going to get good. We're going to let your guest workers come in." Trump continued: "They're going to come in, they're going to work on your farms ... but then they have to go out."

The Departments of State, Agriculture, Labor, and Homeland Security in May 2018 announced that they were "streamlining, simplifying, and improving the H-2A temporary agricultural visa program." USDA Secretary Sonny Perdue has been outspoken on the need for making the H-2A program more employer friendly.

There is speculation that USDA could become the one-stop shop for farmers seeking H-2A workers, handling applications that now go through a sequence of DOL, DHS and DOS. However, many H-2A regulations are based in law, limiting Trump's power to make administrative changes.

USDA allowed farmers and others who received subsidized loans to build housing for workers on their farms, which carry a one percent interest charge and are repaid over 33 years, to house H-2A workers in subsidized housing.

Rep. Bob Goodlatte's AG Act (HR 4092), included in the Secure America's Future Act (HR 4760), divided agriculture, with some farm groups supporting the new H-2C program administered by USDA and others opposing HR 4092's requirement that unauthorized workers return to their countries of origin and re-enter with H-2C visas. These workers could get H-2C visas without proving that they had residences abroad to which they intended to return.

In a bid to win more support from farmers, HR 4092's touchback requirements were modified to allow unauthorized farm workers to have DHS consider and approve their requests for H-2C visas before they leave the US. If approved, these workers could re-enter the US without having to go to a US consulate and obtain an H-2C visas. Unauthorized workers who become H-2C workers could become legal immigrants if they qualified.

The Secure America's Future Act failed to pass in the House June 21, 2018; the vote was 193-231. The House is expected to vote on a farm guest worker bill in July 2018.

Numbers. DOL certified over 200,000 farm jobs to be filled with H-2A workers in FY17; DOS issued 161,600 H-2A visas to foreigners in FY17.

DOL certified 112,200 farm jobs to be filled in the first half of FY18, up 15 percent from 96,800 in the first half of FY17. Florida and Georgia accounted for a quarter of first half certifications, followed by Washington and California with 20 percent. Berries was the largest single crop requesting H-2A workers, accounting for 11 percent of job certifications.

Santa Maria, California in April 2018 did not renew an ordinance that placed a limit of six H-2A workers in a single-family home. Farmers said they needed H-2A workers and that the home owner who evicted tenants to house 16 H-2A workers was an exception.

Fresh Harvest, California's largest employer of H-2A workers, expects to bring 7,000 Mexican and Guatemalan H-2A workers to farms in California, Arizona, Nevada, Oregon and Colorado in 2018. Fresh Harvest must provide H-2A workers with free housing, often in motels, and three meals a day unless there are cooking facilities. When Fresh Harvest provides food to workers, it can charge them about $12 a day for meals.

West Coast Tomatoes, which operates on Camp Pendleton in southern California, agreed to pay $1 million in February 2018 to settle class-action suits alleging that WCT discriminated against US workers to favor H-2A workers, and paid its H-2A packers, but not its US sorters, the AEWR in its packing shed.

Advocates continue to press for changes to regulations governing H-2A sheepherders, who typically receive 364-day visas that are renewed twice before the sheepherder returns home for three months and then returns to the US. Wages in many states are $750 a month. DOL has agreed that sheepherding is not seasonal work, but argues that there is no reason not to continue the traditional practice of renewing H-2A visas.

NGO Polaris operates a hot line that potential victims of human trafficking can contact to receive assistance. During the three years between 2015 and 2017, calls to this hotline identified almost 800 potential labor trafficking victims, including 41 percent with H-2A visas and 31 percent with H-2B visas. Over 70 percent were men, 53 percent were Mexicans, and 42 percent were employed in agriculture, including over half in "other fruits and vegetables."

Polaris records the abuses reported by victims. Three-fourths of potential victims cited economic threats from their employers, typically a threat to fire workers who complain, which generally requires them to leave the US. Almost 60 percent of potential victims cited misrepresentation of the job during recruitment, and almost 40 percent cited long working hours and/or emotional abuse. Over half of economic complaints related to withheld earnings or threats to report workers to DHS.

Polaris recommends legislative solutions, such as allowing guest workers to change employers and enforcing employer-pays-all-worker costs regulations. Other Polaris recommendations include registering recruiters of guest workers abroad and publishing more data on foreign guest workers.

There may also be more practical workplace protections, such as providing workers with secure lockers at their housing or workplaces to store passports, money, and other items, encouraging foreign guest workers to have cell phones that function in the US, and requiring employer job orders to spell out productivity standards, the amount of work that must be accomplished to earn the offered wage.

Many farm jobs guarantee a minimum hourly Adverse Effect Wage Rate, $13.18 an hour in California in 2018, but pay workers piece rates of say $2 per tray of strawberries picked. Foreign workers attracted to the $13 hourly wage may not understand that they must pick an average 6.5 trays an hour to earn $13 an hour. If they fail to meet this productivity standard, they may be fired and forced to leave the US.

No government agency maintains a database of productivity standards. As the H-2A program expands, productivity standards are being established by employers that may be difficult for many US and foreign workers to satisfy.

H-2B. DHS awarded summer H-2B visas in FY18 by lottery, leaving some East Coast crab-picking sheds without enough workers. The 66,000 H-2B visas are divided between winter and summer seasons, and employers requested 81,000 summer visas, prompting the lottery for the 33,000 available.

DHS made an additional 15,000 H-2B visas available for FY18, the same number of additional visas issued for FY17. However, only 13,000 of the additional visas were requested in FY17; in FY18, more than 15,000 were requested, forcing a second lottery.

Maryland crab houses pay H-2B pickers piece rate wags of $3.15 a pound, with a guarantee of $9.51 an hour. Most pickers average 30 pounds a day, earning about $95, and live in housing arranged by their employers, paying up to $50 a week in rent.

North Carolina's Triple H Services agreed to pay over $100,000 in June 2018 to settle charges that it favored H-2B over US workers. DOL said that Triple H only went through the motions of advertising 450 open positions by trying to ensure that US workers did not see them or did not apply; Triple H disputed DOL's findings, but agreed to settle.