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January 2021, Volume 27, Number 1

H-2A; H-2B

DOL certified the applications of 13,552 employers to fill 275,430 jobs with H-2A workers in FY20. The number of jobs certified rose about six percent from FY19. The leading H-2A states were Florida with 14 percent of jobs certified; Georgia and Washington with 10 percent each; California with nine percent; and North Carolina with eight percent. The top five states accounted for over half of all certifications.

Employers specify the occupation or job title rather than the commodity where H-2A workers will be employed. Over 88 percent of H-2A jobs certified were for crop farm workers, followed by six percent for equipment operators and four percent for animal farm workers. The largest single employer was the North Carolina Growers Association with 10,650 jobs certified; followed by Fresh Harvest with 5,300; WALFA with 4,400; and Foothill Packing with 3,200.

USDA’s Farm Labor Survey (FLS) collects employment and earnings data from farm employers for the week that includes the 12th of the month in January, April, July and October, at a cost of $6.2 million in 2019. USDA proposed to add $5 million a year to the FLS budget and to collect data each quarter instead of twice a year, but instead cancelled the FLS September 30, 2020. USDA previously cancelled the FLS for budgetary reasons in 2007 and 2011, but soon restored data collection.

DOL’s OFLC uses the FLS to determine the AEWR, the minimum wage that must be offered and paid to H-2A workers and any US workers who work alongside them. The AEWR for a state or multistate region is the average hourly earnings of field and livestock workers from the FLS for the year before, so that the 2019 survey results were used to set AEWRs for 2020.

The UFW sued USDA for halting the FLS. A federal judge in October 2020 ordered the USDA to collect 2020 farm employment and earnings data and publish them. USDA announced in December 2020 that it would collect the 2020 FLS data and publish them February 11, 2021.

OFLC. DOL’s Office of Foreign Labor Certification in July 2019 proposed to change from one AEWR per state to 10 or more AEWRs per state, setting a separate AEWR for each occupation or job title. DOL proposed to use FLS data to set the AEWR for the employer-specified job but, if FLS data were not available for particular job titles, as for construction laborers and drivers, DOL would use Occupational Employment Statistics data to set the AEWR for the job.

DOL argued that, by allowing farm employers to specify the occupation of the job to be filled from the Standard Occupational Classification (SOC) system, US workers would be protected better from any adverse effects of the employment of H-2A workers. DOL received over 83,500 comments, most of which opposed DOL’s proposed changes.

After USDA cancelled the FLS, DOL on November 5, 2020 issued a final rule that froze AEWRs for most job titles at 2020 levels in 2021 and 2022 to provide “stability and predictability in labor costs” for employers. Beginning in 2023, DOL will adjust AEWRs based on the change in the BLS Employment Cost Index for wages and salaries for the year before.

FLS hourly earnings have been increasing by four percent a year, while the ECI has been increasing by two percent a year. The wage freeze will save employers of H-2A workers about $170 million a year in 2021 and 2022, and $85 million a year in 2023 and beyond if FLS earnings continue to increase by four percent a year while ECI earnings increase by two percent a year. These wage savings could be larger if the H-2A program expands faster due to the AEWR freeze and ECI adjustment mechanism.

For the handful of occupations for which the FLS does not collect earnings data, including construction laborers on farms and truck drivers, DOL will use data from the Occupational Employment Statistics survey to set AEWRs. The OES collects data from nonfarm employers in ranges, as when employers report the number of workers who are paid $12.50 to $15. DOL will use the mean OES wage for the state to set AEWRs for non-FLS job titles, and the national OES if there is not state OES for the occupation.

Employers welcomed the two-year AEWR wage freeze and the prospect of slower rising AEWRs based on the ECI rather than the FLS. Worker advocates sued, emphasizing that the final rule adopted by DOL in November 2020 was not included in the July 2019 proposal and will clearly result in H-2A and US workers employed alongside them receiving lower wages. The effect of the AEWR wage freeze may be larger if the freeze also slows the growth of wages for the 90 percent of US farm workers who are not H-2A workers.

A federal judge in December 2020 blocked the new AEWRs from going into effect, ruling that DOL’s final rule failed to satisfy the legal requirement to protect US farm workers from any adverse effects of guest workers. The judge ordered DOL to resume using USDA FLS data to set AEWRs for 2021 before March 1, 2021.

DOL and worker advocates could not agree on how to deal with AEWRs in January-February 2021. DOL urged a two-month AEWR freeze, while workers argued that the AEWR for January-February 2021 should be increased by the average increase in the FLS over the previous five years, with back wages due to any H-2A and corresponding US workers who were paid less.

In 2008-09, the outgoing Bush administration made changes to the H-2A program that were quickly reversed by the incoming Obama administration. The 2020 Trump administration changes to the H-2A program may be reversed by the Biden administration.

OIG. DOL’s OIG reviewed the administration of four labor certification programs, PERM, H-1B, H-2A, and H-2B. The H-2A program has the most DOL involvement, including supervision of US employer recruitment of US workers and audits and potential debarment of employers who are not truthful about their need for workers.

The OIG noted that employers applying for certification to employ H-2A workers make 17 attestations, but DOL certifies their need for H-2A workers without documentation that all 17 promises have been fulfilled. Since 2008, DOL can audit employers to ensure they are fulfilling their 17 promises.

WHD investigates employers to ensure they are obeying H-2A regulations, but must find violations within two years and does not have the power to subpoena documents from employers. As the H-2A program expands, WHD investigators are finding more violations of H-2A regulations.

DOL. OIG. 2020. Overview of Vulnerabilities and Challenges in Foreign Labor Certification Programs.

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