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July 2020, Volume 26, Number 3

H-2A; H-2B

DOL certified over 13,000 farm employers to fill almost 258,000 jobs with H-2A guest workers in FY19. In the first two quarters of FY20, DOL certified 8,000 farm employers to fill over 138,000 jobs with H-2A workers. In FY19, almost half of the year?s job certifications were made in the first two quarters; if the same pattern holds in FY20, DOL would certify about 275,000 farm jobs, up seven percent from FY19.

DOL certified 23,321 jobs in California to be filled by H-2A workers in FY19. Two-thirds of H-2A jobs were in six counties, led by Monterey with over a quarter and Santa Barbara with 10 percent of jobs certified. Over two-thirds of H-2A jobs were with farm labor contractors, including a third with the California?s largest H-2A employer, Fresh Harvest.

During the first six months of FY20, the same six counties accounted for two-thirds of H-2A jobs certified. As in FY19, FLCs accounted for 90 percent of the jobs certified in Monterey county, and less than half in Imperial county. Job certification data emphasize that most H-2A workers are in coastal counties with high-value commodities and high housing costs and near the border, where frequent Border Patrol checks require employers to hire legal workers.

On April 20, 2020, DHS allowed farm employers who have been certified to employ H-2A workers to hire H-2A workers already in the US who have finished a contract with another farm employer. Instead of returning home, these H-2A workers could stay in the US and work for another US farm employer. The switch-employers rule for H-2A workers is in effect through August 18, 2020.

Previously, farm employers could hire H-2A workers already in the US only if they enrolled in E-Verify and checked the legal status of all newly hired workers. DHS waived this enrollment in E-Verify requirement, and USDA created a website to enable farm employers to find H-2A workers who are finishing contracts with other farm employers.

DOS issued almost 205,000 H-2A visas in FY19, including 94 percent to Mexicans. DOS in March 2020 waived the requirement that workers seeking H-2A visas appear at consulates for in-person interviews. Article 28 of Mexico?s 1970 labor law, revised in 2019, requires that H-2A and other contracts for work abroad be registered with the Mexican Ministry of Labor. Article 28 explicitly states that employers must pay all worker costs, including for recruitment, visa fees and food and transportation.

Mexico had 433 registered labor recruiters in 2019, including nine registered to recruit workers for foreign jobs. Mexico?s MOL conducted 81 inspections of recruiters between 2009 and 2019, and found no violations of Article 28.

US Custom Harvesters complained in May 2020 that South Africans and others were having trouble getting H-2A visas to enter the US to operate harvesting equipment. A third of the US hired workers who operate combines and drive grain trucks are H-2A workers. Custom Harvesters says that its member firms harvest wheat as they move from south to north, beginning in Texas and Oklahoma and ending the season in Canada.

President Trump in April 2020 reportedly considered reducing the adverse effect wage rate, the wage that must be paid to H-2A and similar US workers to avoid having the presence of guest workers depress the wages of US workers. AEWRs vary by state, and in 2020 ranged from $11.71 to $15.83 an hour.

HR 6083 would reduce the AEWR to the higher of the state minimum wage (29 states have minimum wages that are higher than the federal $7.25 an hour) or to 15 percent above the federal minimum wage or $8.34 an hour. There are 21 states whose minimum wage is $7.25 an hour, including major H-2A using states such as Georgia and North Carolina. In Georgia, the AEWR would fall by almost $3 an hour and in North Carolina by $4 an hour.

New Jersey-based Overdevest Nurseries failed to pay its 69 US workers the AEWR that it paid to 55 H-2A workers. A federal court in May 2020 ordered Overdevest to pay $92,000 in back wages to the US workers and $50,000 in civil money penalties because the US workers were in similar or corresponding jobs to those held by the H-2A workers.

H-2B. The H-2B program allows US employers to hire foreign workers to fill seasonal nonfarm jobs. There is a cap of 66,000 visas a year, but employers typically request 100,000 or more H-2B workers. Congress allowed DHS to increase the number of H-2B visas in FY17, FY18, and FY19.

For FY20, DHS announced that an additional 35,000 H-2B visas would be available, but withdrew these additional visas as unemployment spiked in March-April 2020. Employers protested that, while closed hotels and restaurants wanted fewer H-2B workers in 2020, landscapers and food-related sectors wanted more H-2B workers.

In May 2020, DHS allowed food-related nonfarm employers to hire H-2B workers who completed one contract with another employer, potentially saving recruitment and transport costs.-2B visas

Employers apply to DOL for certification to employ H-2B workers, and they attach DOL?s certification to their petitions filed with the USCIS agency of DHS, which reviews them and forwards approved petitions to DOS so that consular officers can issue visas to the foreigners that employers want to employ.

In FY18, DHS approved petitions from 3,700 employers, including 127 who were approved for more than 100 H-2B visas. Most H-2B workers are employed in landscaping, hospitality, forestry and construction.

An April 2020 GAO report concluded that wages were higher and unemployment lower in counties with employers who hired H-2B workers. GAO interviewed 35 employers of H-2B workers, many of whom complained that their revenues were reduced because they did not receive all of the H-2B workers they requested.

Over half of the crab-picking workforce of the responding seafood employers were H-2B workers. They attributed their inability to hire more US workers to the seasonality and difficulty of the work as well as its remote location. H-2B workers were a third of the employees of the landscaping firms interviewed.

In FY19, DOL certified 7,400 employers to fill 150,500 jobs with H-2B workers. Landscaping accounted for 44 percent of the jobs certified, followed by forestry, eight percent, maids and housekeepers, seven percent, and meat and fish workers, six percent. Brightview was certified to fill almost 3,500 jobs with H-2B workers, followed by Imperial Pacific, a Chinese firm with a casino in Saipan that was certified to fill 2,600 jobs with H-2B workers, and Silver Bay Seafoods, a Sitka, Alaska seafood processor that was certified to fill 1,800 jobs with H-2B workers.

GAO. 2020. Additional Steps Needed to Meet Employers' Hiring Needs and Protect U.S. Workers.

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