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April 2020, Volume 26, Number 2

H-2A; H-2B

DOL certified almost 258,000 jobs to be filled with H-2A workers in FY19. Agricultural labor contractors were certified to fill 41 percent of the FY19 jobs, up from 12 percent in 2013.

DOS issued 204,800 H-2A visas in FY19, up from 196,400 in FY18, when DOS issued 180,400 H-2A visas to Mexicans (88 percent), 5,300 to Jamaicans (2.5 percent), 3,900 to Guatemalans (2 percent), and 3,600 to South Africans. H-2A workers can be recruited in 84 countries.

DOS in March 2020 waived interviews for returning Mexican workers seeking H-2A and H-2B visas, provided they had a visa within the last four years and no grounds for ineligibility. First-time workers can also skip in-person interviews under some circumstances. President Trump in March 2020 said: “We want them to come in. We're not closing the border so that we can’t get any of those people to come in…They're going to continue to come. Or we're not going to have any farmers.”

USCIS in November 2019 announced that it would no longer consider sheepherding to be temporary or seasonal work, ending the practice of admitting H-2A sheepherders for 364 days and renewing their visas twice for a three-year stay. After three months at home, many H-2A sheepherders returned to the US for another three-year stay. USCIS normally defers to DOL to define temporary and seasonal, which DOL normally limits to 10 months, with an exception for sheepherders that dates to the 1950s.

DOL in spring 2020 continued to work on the 83,000 comments received in response to its July 2019 Notice of Proposed Rulemaking (NPRM) that would, for instance, change the way that the Adverse Effect Wage Rate (AEWR) is determined.

HR 5038, the Farm Workforce Modernization Act, was approved by the House in December 2019, but has not been acted on by the Senate. Some hope that an expected US Supreme Court decision on the fate of DACA by June 2020 will spur Congress to act on unauthorized foreigners bought to the US before the age of 16 and farm workers.

Representative Ted Yoho (R-FL) introduced HR 6083 in March 2020, the Labor Certainty for Food Security Act. HR 6083 would transfer the H-2A program from DOL to USDA and replace the AEWR with a requirement to pay the higher of the state’s minimum wage of 15 percent more than the federal minimum wage of $7.25 or $8.34 an hour. Guest workers could work in any farm job, that is, the current requirement that the need for workers be seasonal would be eliminated.

Under HR 6083, unauthorized workers in the US could pay a $2,500 fine for three-year renewable work permits that would allow them to work only in agriculture; permit holders would have to report their farm employer quarterly at US post offices. The family members of HR 6083 visa holders would be protected from deportation as long as the visa holder continued to do farm work. HR 6083 visa holders and their families would be barred from federal means-tested welfare programs.

HR 6083 requires USDA to study the demand for and supply of farm workers and determine whether there are farm-labor shortages. USDA would also analyze guest-worker employment, including determining the number of guest workers who failed to check in at post offices as required. USDA would also have to develop surveys of farmers to estimate their labor needs, and create an internet employment service through which employers could offer and workers could seek farm jobs.

CDM released the results of a Fall 2019 survey of 100 Mexican workers in Mexico who had been employed with H-2A visas in the US, and reported that all of the workers interviewed had experienced at least one “serious” violation of labor rights, and 94 percent experienced three or more violations.

The report did not tabulate violations in the various stages of the process, recruitment, transportation to the US workplace, employment, housing, and wages in the US, and return to Mexico, but emphasize that many workers paid fees in Mexico to obtain H-2A job offers. The report distinguished between speakers of Spanish and indigenous languages, but not between first-time and repeat H-2A workers; repeat H-2A workers may have reported fewer violations.

Some of the worker-reported violations are objective, such as wages paid in the US, while others are more subjective, such as workers feeling that they were not free to quit their jobs.

H-2B. There are 66,000 H-2B visas available for employers seeking foreign workers to fill seasonal nonfarm jobs, such as those in landscaping and gardening. Employers typically request over 100,000 H-2B visas, prompting Congress to authorize DHS to increase the number of visas available.

In March 2020, DHS announced that it would make up to 35,000 additional H-2B visas available to foreigners who previously held H-2B visas and who are coming to the US to fill jobs that an employer considers critical. At least 10,000 of the additional visas are for citizens of Guatemala, Honduras and El Salvador. After the coronavirus lockdown, DHS paused the H-2B visa increase.

Centro de los Derechos del Migrante. 2020. Ripe for Reform: Abuse of Agricultural Workers in the H-2A Visa Program.