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January 2020, Volume 26, Number 1

H-2A; H-2B: AEWR, FWMA

DOL certified 257,666 jobs to be filled with H-2A workers in FY19, up 11 percent from FY18. The top five H-2A states, Florida, Georgia, Washington, California, and North Carolina, accounted for over half of the H-2A jobs certified. Two-thirds of H-2A job requests are made between January and June.

USDA released average hourly earnings data for 2019 that suggest the average US AEWR will be $14 an hour in 2020, and almost $16 in Oregon and Washington and $15 in California.

The US Department of State issued 196,400 H-2A visas in FY18 and 83,800 H-2B visas. Mexicans received 94 percent of H-2A visas, followed by almost three percent for Jamaicans and two percent for Guatemalans.

In summer 2019, Guatemala signed a safe-third country agreement with the US that requires Hondurans, Salvadorans and other foreigners passing through the country to apply for asylum in Guatemala rather than continue on through Mexico to the US. As a "reward" for signing the safe third-country agreement, a US official suggested that the number of H-2A visas issued to Guatemalans could triple from the 4,000 issued in FY18, reportedly spurring a new round of recruitment fraud.

The cost of an H-2A visa is $190, and should be paid by the US employer, as well as the cost of transport to the US job, with reimbursement due after the H-2A worker arrives and begins to work. False recruiters travel to farming villages and promise US jobs paying $12 to $15 an hour for up front cash fees of $1,000 to $2,000. Some rural residents take out loans to pay such fees but, when they report to the US consulate for the H-2A visas they expect, they learn they have been scammed.

A rider to the DHS funding bill to allow H-2A workers to be employed in year-round farm jobs was removed during House-Senate negotiations. The rider allowing H-2A workers in year-round jobs has been in several DHS funding bills, but has not been enacted into law.

FWMA. A bipartisan group of 44 House representatives in October 2019 introduced HR 5038, the Farm Workforce Modernization Act (FWMA), to legalize currently unauthorized farm workers, streamline the H-2A program, and require farm employers to use E-Verify to check newly hired workers.

The House Judiciary Committee approved HR 5038 on an 18-12 vote in November 2019, and the full House approved HR 5038 on a 260-165 vote in December 2019; three Democrats and 161 Republicans voted no.

Unauthorized farm workers who did at least 180 days of farm work in the 24 months before October 2019 could apply for Certified Agricultural Worker status, which would provide the CAW worker and his/her dependents with renewable five-year work permits good for employment in any industry.

CAW workers could receive immigrant visas if they continued to do farm work and paid a $1,000 fine. Unauthorized farm workers who have worked in US agriculture for 10 or more years would have to do at least 100 days of farm work a year for the next four years, and those who worked in US agriculture less than 10 years would have to do eight more years of 100-day-a-year farm work, to apply for immigrant visas.

Currently, there are 5,000 immigrant visas a year for foreigners without college degrees who are sponsored by their employers. The FWMA would create 40,000 immigrant visas for farm workers who are sponsored by US employers or H-2A workers who worked at least 10 years in the US. H-2A workers who apply for immigrant visas, and who must wait in a backlog, would be allowed to stay in the US indefinitely while their applications are pending.

After the CAW legalization program is implemented, farm employers must use E-Verify to check the status of new hires.

The H-2A program would be modified to allow three-year visas rather than the current maximum 10-month visa. H-2A workers who complete a contract with one farmer, but have time remaining on their three-year visas, could remain in the US up to 45 days to find a new employer who has been certified to hire H-2A workers.

The 2020 AEWRs, which range from $12 to $16 an hour, would be frozen and then set on the basis of specific job categories, with a limits on year-to-year increases of 3.25 percent through 2030. USDA and DOL would study the impact and need for AEWRs and recommend how to proceed after 2030.

Up to 20,000 year-round jobs could be filled by H-2A workers, with the cap rising after three years and a determination made after 10 years of whether a cap on the number of H-2A workers in year-round jobs is needed. Employers of year-round H-2A workers would have to provide family housing to their H-2A employers and a paid trip home for each worker once a year.

A new pilot program granting 10,000 portable H-2A visas would be established to allow some H-2A workers to move from one farm employer to another. After six years, DOL, DHS, and USDA must issue a report recommending what to do about portable H-2A visas.

Most major farm organizations endorsed the FWMA, as did most migrant advocates. Restrictionists denounced "amnesty" for farm workers, and urged the federal government to encourage labor-saving mechanization rather than make it easier for farmers to hire guest workers.

DOL. Salinas-based Foothill Packing paid $2.2 million to settle DOL charges that 3,900 H-2A workers who harvested commodities for Taylor Farms California and Dole Fresh Vegetables were not paid for time spent traveling between fields. CLRA charged that employers who transport workers from housing to workplaces and between fields owe the workers being transported wages for the time spent traveling. Growers say that transport is a convenience to workers, since those with their own transportation could carpool.

Salinas-based Empire Farm Labor Contractor paid $38,260 in back wages to 79 H-2A workers in November 2019, and another $18,413 for violations in Imperial county. Empire failed to pay the H-2A workers' transportation expenses and retained their passports. DOL found violations of labor and H-2A laws at several Santa Maria farmers and FLCs.

Braceros. Some 36,000 ex-Braceros are still waiting for payments of 38,000 pesos ($2,000) as compensation for the 10 percent deductions from their wages during WWII that were forwarded by Wells Fargo Bank to the National Rural Credit Bank of Mexico and lost; a total of $35 million was transferred. The Mexican government agreed to make the payments in 2008 via a Social Support Trust that was not funded by President Enrique Pe?a Nieto between 2012 to 2018. Current President AMLO has not indicated if he will provide the funds.