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October 2019, Volume 25, Number 4

H-2A; H-2B

The H-2A program continues to expand. Over 206,000 farm jobs were certified to be filled with H-2A workers during the first three quarters of FY19, up seven percent from 193,000 in FY18. Most jobs are certified between January and June: two-thirds of the total 243,000 jobs certified in FY18 were certified in the first two quarters of the year.

The Department of Labor certified 171,000 H-2A jobs between January and June 2019, which suggests that total certifications for FY19 could top 255,000. The growth in the H-2A program may be slowing. The increase in third-quarter applications over 2018 was the slowest in five years.

The Department of State issued 196,400 H-2A visas in FY18, more than double the 89,300 in FY14. About 180,000 or 92 percent of H-2A visas went to Mexicans, followed by 4,000 or two percent to Guatemalans.

DOL released proposed H-2A regulations July 26, 2019 that mandate the electronic filing of job orders and allow employers in reforestation and pine straw activities to employ H-2A rather than H-2B workers. Employers would be able to stagger the entry of H-2A workers, using one application to allow the entry of groups of workers at different times over 120 days.

The proposed changes include elimination of the 50 percent rule, which currently requires employers to hire US workers until 50 percent of the employer-specified contract period is completed. Instead, employers would be required to hire US workers who apply only during the first 30 days of the contract period. Employers could request additional workers and add worksites without filing new applications.

Employers would have to reimburse worker travel costs to and from the US embassy or consulate where H-2A workers receive their visa rather than the workers' usual homes as under the current regulation. Most Mexican H-2A workers receive their visas near the US border but live in West Central or southern Mexico.

A major change deals with the Adverse Effect Wage Rate (AEWR), which is the minimum hourly wage that farmers must offer to US and H-2A workers. There is now one AEWR per state, and it is the average hourly earnings of non-supervisory crop and livestock workers from the previous year's USDA Farm Labor Survey (FLS).

The proposed rule would allow farmers to specify job titles, such as crop farm workers and laborers or first-line supervisors. When determining the AEWR for each job title, DOL would first look to the Farm Labor Survey for a wage by job title or occupation. If the FLS provides such a wage for that job title, the FLS wage would become the AEWR.

If FLS does not provide a wage for the job title or occupation, DOL would use data from DOL's Occupational Employment Statistics, which collects data for 800 occupations, to determine the AEWR for a particular job title.

The OES reports wages for the 800 job titles included in the Standard Occupational Classification system. Farming is in SOC 45 and includes supervisors in 45-1000 and four categories of agricultural workers in 45-2090: 45-2091, agricultural equipment operators; 45-2092 farm workers and laborers, crop, nursery, and greenhouse; 45-2093 farm workers, farm, ranch, and aquacultural animals; and 45-2099, agricultural workers, all others.

If neither of FLS nor OES has wage data for the job title, than the AEWR would be Farm Labor Survey's national wage for the job title and, if that is not available, the Occupational Employment Statistics national wage for the job title.

Prevailing wage surveys are done by State Workforce Agencies that often complain they do not receive enough federal funds to complete them in a timely manner. The new regulation would make prevailing wage surveys optional, end the requirement that employers and workers be interviewed in person to obtain wage data, and allow state agencies other than SWAs to conduct prevailing wage surveys.

Prevailing piece rates determine productivity standards, or how fast workers must work to earn the AEWR. For example, if the AEWR is $15 an hour, and the piece rate for picking apples is $30 a bin, then workers must pick at least four bins in an eight-hour day to earn the $120 AEWR wage. Workers who cannot pick fast enough to earn the AEWR can be terminated.

DOL's July 26, 2019 regulations are likely to reduce the number of prevailing wage surveys. DOL does not plan to increase funding to conduct prevailing wage surveys, and instead increases requirements before the findings of prevailing wage surveys are accepted as determining the prevailing wage for a particular task and commodity.

For example, DOL proposes that a random sample or census of employers must be conducted and obtain only wages paid to legal US workers. The result of the survey becomes a prevailing wage only if at least 50 percent of the US workers are paid by the same unit.

Under the proposed regulations, each survey would have to meet eight criteria ranging from the methodology of the random sample or census used to collect the wage data to obtaining data from at least five employers covering at least 30 (legal) US workers. To become a prevailing wage, at least half of the legal US workers must be paid by the same work unit, such as by the hour or 1,000-pound bin.

H-2B. MasLabor in Lovingston is the largest recruiter of H-2B workers for US firms; 90 percent of its H-2B clients are landscapers.