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October 2018, Volume 24, Number 4

H-2A, H-2B, H-2C

The US Department of Labor certified 193,600 farm jobs to be filled with H-2A workers during the first three quarters of FY18. DOL certified 200,000 jobs in FY17, and is likely to certify over 250,000 jobs in FY18. Five states, Georgia, Florida, Washington, North Carolina and California, accounted for over half of H-2A certifications.

The US Department of State issued 161,600 H-2A visas in FY17, up from 134,400 in FY16.

The 8,000-member Farm Labor Organizing Committee and four farm workers sued DOL in August 2018 for certifying jobs to be filled by H-2A workers when employers offered less than prevailing wages. As the H-2A program expands, some State Workforce Agencies are unable to conduct prevailing wage surveys; the suit alleges that DOL certifies an employer's need for H-2A workers without knowledge of the prevailing wage.

The suit identified several cases in which the wage offered by the employer was less than the Occupational Employment Statistics wage, such as McCabe Agribusiness's offer of $11.63 an hour for agricultural equipment operators when the OES wage was $23.27. The suit cites other examples of the OES wage exceeding the AEWR that was approved by DOL for H-2A workers.

H-2B. Chesapeake Bay crab houses complained that a third of their jobs were unfilled in summer 2018 because of too few H-2B visas. One crab house hired 50 H-2B workers a year since 1992, but got no visas in 2018 despite entering two lotteries, the first for 33,000 visas and the second for 15,000. Lindy's Seafood got 40 percent of the H-2B visas requested, and tried to attract local workers by offering $9.60 an hour plus $4.50 per pound of crab picked.

Palmetto Beach Hospitality LLC in September 2018 agreed to pay $77,000 to settle charges that it refused to consider US workers and instead hired H-2B workers.

H-2C. Rep Bob Goodlatte (R-VA) in July 2018 introduced a new version of the H-2C guest worker program in the Agricultural Guestworker (AG) and Legal Workforce Act (HR 6417). As with previous versions, farm and farm-related businesses offering seasonal and year-round jobs could hire up to 450,000 H-2C guest workers, including 40,000 for workers employed in meat and poultry processing.

H-2A and H-2B workers returning to their previous employers would not count against the cap, and the cap could rise if employers requested all 450,000 visas. Since H-2C visas are valid for up to three years, there could be over 1.3 million H-2C guest workers in the US after three years.

After three years of US work, H-2C workers would be required to stay outside the US at least 60 days before re-entry. Currently unauthorized workers must return to their home countries for at least 60 days and re-enter the US legally, but they could have their applications for H-2C visas pre-approved before leaving the US.

Employers of H-2C guest workers would have to pay them at least 115 percent of the federal or state minimum wage but would not have to provide housing or transportation to H-2C workers. H-2C workers could change employers in the US, and employers must report those who leave within 72 hours. Employers are to deposit 10 percent of H-2C wages in a trust fund that workers can receive from US consulates in their country of origin.

HR 6417 would require all US employers, including those who hire H-2C guest workers, to enroll in E-Verify.

Most national farm associations, including the AFBF, dairy associations and meatpackers, and WAFLA, support HR 6417. The Western Growers Association and many growers who fear that currently unauthorized workers would not leave their spouses in the US and return to their home countries to re-enter as H-2C workers oppose HR 6417, as do most farm worker advocates.

The House took its August recess without voting on a HR 6417; House leaders said that there were not 218 votes to approve the bill.