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October 2021, Volume 27, Number 4

H-2A; H-2B

DOL received 14,300 H-2A applications requesting certification to fill 257,500 jobs with H-2A workers in the first three quarters of FY21; DOL’s OFLC certified 248,000 jobs or 97 percent of these job requests for H-2A workers. In the first three quarters of FY20, DOL received 12,355 applications to certify 198, 800 jobs, and certified 190,400 jobs or 97 percent.


During the first three quarters of FY21, Florida accounted for 12 percent of H-2A certifications; Georgia 11 percent; California and Washington 10 percent each; and North Carolina, eight percent. DOL is expected to certify over 300,000 jobs to be filled with H-2A workers in FY21.


S 2443, introduced in July 2021, would allow H-2A workers to be employed in year-round farm jobs and expand the definition of agricultural labor to allow H-2A workers to be employed in agricultural jobs as defined in the Standard Occupational Classification (SOC 45-1000) and seafood processing (including jobs on sea-going vessels), installation and maintenance of horticultural commodities, landscaping, and horse breeding.


The Farming, Fishing, and Forestry Occupations in SOC 45-0000 include supervisors in 45-1000, agricultural workers in 45-2000, fishing and hunting workers in 45-3000, and forestry and logging workers in 45-4000. Some of these occupations, especially in forestry and logging, are currently filled by workers with H-2B visas.


The H-2A program allows farm employers to fill seasonal farm jobs with H-2A workers after they receive certification from the DOL that the employer has satisfied two major tests. The recruitment test requires employers to develop job orders and try and fail to recruit US workers to fill the vacant jobs. The adverse effect test requires employers to offer and pay the highest of several wages, including the federal or state minimum wage, the prevailing wage, or the Adverse Effect Wage Rate (AEWR).


DOL’s OFLC uses data from the USDA FLS survey of farm employers to establish the AEWR, while state workforce agencies (SWAs) conduct surveys of employers to determine prevailing wages and practices. DOL stopped funding the FLS in 2021, prompting USDA to reduce the sample of farm employers who are contacted to obtain employment and earnings data. USDA returned to the pre-2019 version of the survey, which reported average hourly earnings based on wages paid and hours worked by type of worker.


Prevailing Wages. Ever-fewer SWAs conduct the employer surveys that are reviewed by OFLC and posted to OFLC’s agricultural wage online library.


The lack of prevailing wages allows the AEWR to become the default minimum wage, which can act as a ceiling on wages. For example, if local workers believe that the prevailing wage for an ag equipment operator is $20 an hour, but there is no SWA prevailing wage determination for ag equipment operator, local workers may reject job offers that offer the $15 AEWR and employers may hire H-2A workers at the $15 AEWR.


The paucity of prevailing wages in the OFLC library prompted Public Citizen and FLOC to sue DOL in August 2018 on behalf of four US workers who said they would have filled farm jobs for the prevailing wage, but they were unwilling to work for the lower AEWR that was offered, so that farm employers could fill these farm jobs with H-2A workers.


A federal court in March 2021 rejected the worker advocate suit, emphasizing that the OFLC sets the AWER and that SWAs are responsible for collecting data to establish prevailing wages. If SWAs fail to collect prevailing wage data, the judge ruled that the AEWR can become the wage offered and paid to H-2A and US workers when the AEWR is the highest of the four potential wages for the job in question.


More nonfarm construction and trucking firms are hiring H-2A workers at the statewide AEWR to fill construction and truck driver jobs that have higher prevailing wages. DOL recognized this issue in a proposed July 26, 2019 rule that would set AEWRs by job title, so that there would be an AEWR for crop workers and different AEWRs for agricultural equipment operators, construction workers and drivers.


DOL proposed to use USDA’s FLS survey of farm employers to obtain wage data for the job titles for which it collects data, and to use the BLS OES survey of nonfarm employers to obtain wage data for other job titles. DOL issued final regulations November 20, 2020 to implement this new AEWR methodology, but these regulations were withdrawn by the Biden Administration January 21, 2021. The pending FWMA would put the AEWR methodology of setting AEWR wages by job title into law.


When DOL issued a final rule in 2010 reversing changes to the H-2A program made by the outgoing Bush Administration in December 2008, DOL eliminated references to SWA prevailing wage surveys that appeared in prior versions of the rule. Worker advocates argued that SWA surveys are not the only source of prevailing wages, since DOL could also look to the OES and other data sources to determine prevailing wages. The July 2019 proposal included the phrase that DOL “is not obligated to establish a prevailing wage separate from the AEWR for every occupation and agricultural activity in every State.”


H-2B. Employers in a variety of businesses, from landscaping to hotels and restaurants in summer resort areas, complained of labor shortages in summer 2021. DOL certified 150,557 jobs to be filled with H-2B workers in FY20, including 73,948 or 46 percent for landscaping and groundskeeping workers.


Far fewer H-2B workers are in the US. There are 66,000 H-2B visas a year available, and the entry of additional H-2B workers was suspended June 22, 2020, although H-2B workers already in the US could accept new contracts and stay. The Biden administration resumed the J-1 exchange visitor program and added 20,000 H-2B visas for US employers who could show that they face hardships without H-2B workers.


Employers complained that, even when they were approved to hire H-2B workers, consular and travel delays prevented some foreign workers from arriving in a timely way. Employers in summer resort areas acknowledge that very high housing costs in their areas mean that most summer workers must accept sleeping in barracks.


North Carolina-based Garcia Forest Service LLC employed H-2B workers as fir-tippers in Maine, and violated the Migrant and Seasonal Agricultural Worker Protection Act by not following transportation regulations and by giving preferential treatment to its H-2B rather than to its US workers. Garcia agreed to pay $56,000 in civil money penalties and take other steps to avoid violating MSPA in the future.


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