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January 2022, Volume 28, Number 1

H-2A; H-2B

DOL certified 317,619 farm jobs to be filled by H-2A workers in FY21, up 15 percent from 275,430 in FY20. About 80 percent of jobs certified result in the issuance of visas; 258,000 H-2A visas were issued to foreigners filling seasonal jobs on US farms in FY21. Over 90 percent of H-2A visas go to Mexicans, who are in the US an average six months. The almost 130,000 full-time equivalent H-2A workers are 12 percent of the 1.1 million full-time equivalent jobs in US crop agriculture.

AEWRs for 2022 range from $12 an hour in the southeastern states to $17.51 in California, and the AEWR for sheepherders is $1,807 a month, and higher in some states. Florida and the southeast had small increases in the AEWR between 2020 and 2021 of less than $0.50 an hour or four percent, while the Northeast II states of New Jersey and Pennsylvania, and California, Oregon, and Washington, had increases of about $1.50 an hour or nine percent.

The Keep Food Local & Affordable Act of 2021 would have frozen AEWRs at their 2021 levels in states with unemployment rates below five percent, and allowed governors of states where food prices rose more than three percent in the last 12 months to freeze AEWRs at 2021 levels in their states.

AB-857, introduced in February 2021 on behalf of the California Rural Legal Assistance Foundation, would have required H-2A workers arriving in California to receive brochures outlining their rights under federal and state laws. AB-857 was not enacted, but the CRLAF argues that H-2A workers are tenants in their temporary housing and thus have the right to invite guests to visit them. The CRLAF argues that H-2A workers should be compensated for travel time between this housing and the fields.

In a November 2021 decision, the Ninth Circuit Court of Appeals ruled that arbitration agreements between H-2A workers and their employers are binding. A Mexican H-2A worker employed by Elkhorn Packing in 2016 and 2017 sued for unpaid wages, Elkhorn pointed to the arbitration agreement, and a lower court agreed that H-2A workers were dependent on their US employers and thus could not be forced to arbitrate employment disputes. The Ninth Circuit reversed this decision, which is likely to prompt most employers of H-2A workers to include arbitration clauses in their job offers.

Misclassification. As the H-2A program expands, more cases of employers lying to DOL about the jobs their H-2A employees perform are surfacing. Some farm employers hire H-2A workers to fill nonfarm jobs and pay them the AEWR rather than the higher prevailing wage for the job. In most states, farm workers do not receive overtime pay, which is a second source of savings for employers who consider their employees to be farm workers.

The best-known examples of misclassification include truck drivers, who may be called agricultural equipment operators, and construction workers, who may be called crop or animal support workers when they build buildings on farms.

H-2A truck drivers employed by a farm operator who convey produce from fields to farm-owed packing and processing facilities are considered to be farm workers, but drivers employed by nonfarm trucking farms who move produce from many farms over public roads to commercial packing and processing plants are usually nonfarm workers. If their jobs are seasonal, such drivers can be hired under the H-2B program and paid the prevailing wage and overtime wages.
The line between agricultural equipment operator and commercial truck driver is especially blurry in the case of custom combining crews that harvest wheat and other grains from Texas to Canada. These custom harvesters move from farm to farm and haul the harvested grain over public roads to on- or off-farm storage facilities at the AEWR for crop and livestock workers. Drivers are often called equipment operators and paid the AEWR rather than the prevailing wage for commercial truck drivers, which can be $25 an hour.

DOL recognized employer misclassification of farm jobs in July 26, 2019 proposed rulemaking that would have set AEWRs by job title rather than the current practice of establishing one AEWR per state based on the average hourly earnings of crop and livestock workers. USDA began to collect and report data by job title when it expanded the FLS sample from 12,000 to 35,000 farms in 2019, and DOL proposed to use FLS data to establish AEWRs by job title in states and regions where the FLS data were available. In other states and regions, DOL proposed to use DOL’s OES to set AEWRs at the mean prevailing wages. Under the DOL proposal, AEWRs for truck drivers, construction workers and mechanics would have risen, often doubling.

The proposal to set AEWRs by job title is included in the pending FWMA immigration reform and was re-proposed by DOL on December 1, 2021.

No one knows how many US employers are taking advantage of the lower AEWR and no overtime requirements to hire nonfarm workers at farm wage rates. The affected workers may not understand the differences between farm and nonfarm jobs and wages, and employers may feel vindicated if OFLC certifies them to hire “farm workers” year-after-year.

DOL’s WHD investigated some trucking, construction and other firms that employ H-2A workers and ordered offenders to pay back wages to their H-2A employees that reflect the difference between prevailing wages and the AEWR. Such investigations are likely the tip of an iceberg and may expand as the H-2A program grows.

For example, some Texas fence erecting firms are certified to hire sheep shearers, but use their H-2A employees to construct fencing, a specialty construction trade where prevailing wages are significantly higher than the AEWR. In the few cases that have been litigated, the maintenance of fences while tending cattle and sheep is considered to be farm work, but the construction of fences is considered to be nonfarm work.

H-2A Reform. The fact that few jobless local workers filled seasonal farm jobs despite high unemployment rates in 2020 and 2021 suggests that many and perhaps most of the seasonal hand workers of tomorrow are growing up today somewhere outside the country. As the H-2A program expands, three changes could benefit employers and workers.

First, after one or two years in the program, approved employers and returning migrant workers could receive multi-year certification and multi-year visas so that both farm employers and migrant workers could plan for employment year-after-year. Farm employers would self-certify their need for workers and their housing, changing only the wage rate, number of workers, and start and stop dates. Workers could leave for jobs abroad from nearer their homes rather than from consulates that issue H-2A visas. Workers would enter the US with a certified job offer from their previous-year’s employer that includes contact info so that CBP could contact the employer to ensure the job offer is valid.

Longer-term certification would provide more certainty for employers and give workers an incentive to learn English and undergo training to improve their productivity and earnings.

Second, H-2A expansion justifies new business models, such as organizing crews of workers in sending countries that arrive with supervisors, drivers, cooks and other support personnel, turning labor migration into a turn-key operation. Custom combining of grain provides an example. Canadian-based firms bring equipment, operators, drivers and mechanics into the midwestern states and harvest wheat and other grains from south to north. Being able to use the equipment longer justifies the purchase of modern equipment and maximizes the seasonal earnings of workers.

Extending this turn-key crew approach to hand-harvested commodities could mean recruiting and training crews in sending countries so that they arrive experienced and ready to work, although only workers rather than workers and equipment might cross the border. A crew-based approach could take advantage of migrant networks to maintain efficient workforces, recruiting additional workers and training them in the country of origin.

Third is fixing recruitment in sending countries. The major issue is an excess supply of workers seeking higher wage jobs abroad, which allows recruiters to charge workers for access to these jobs. The ILO and many national governments obligate employers to pay all or most costs for migrant workers, but policing this employer-pays-all-costs requirement is very difficult.

Rather than subsidizing government agencies to create work-ready pools from which employers select individual workers, a better approach may be to subsidize multinational staffing firms with reputations to protect to recruit and train crews of workers, thereby achieving economies of scale and reducing corruption in recruitment.

The net effect of multi-year certification and visas, crews, and fewer and larger recruiters would be to transform farm labor recruitment from a business of small firms each recruiting and deploying less than 100 workers to larger firms that develop procedures to comply with labor laws and regulations and achieve economies of scale. Crew-based multi-year arrangements organized by multinationals could generate win-win outcomes for employers and workers.

Northern Triangle. The US government wants to increase the number of Hondurans, Guatemalans and Salvadorans who receive H-2A and H-2B visas. USAID provides funds to NGOs that help government agencies recruit and screen workers, with successful applicants placed in work-ready pools from which US employers select workers. The assumption behind work-ready pools is that US employers do not know how to find capable Northern Triangle workers.

Many US employers, on the other hand, are reluctant to recruit from work-ready pools, suggesting that there may be a demand rather than a supply problem. The workers who respond to internet and other ads that highlight high US wages are often urban residents without farm work experience, not the rural residents with farm work experience desired by US employers. Few Northern Triangle workers have experience with US commodities and working methods, but those with farm work experience at home are most likely to become productive US workers.

There are work-ready pools of migrants in many countries who were recruited honestly but who were never offered jobs by foreign employers. Some migrant advocates want to issue work permits to migrants in work-ready pools that allow them to enter the US and work for any employer in a particular industry, occupation, and area.

H-2B. The H-2B program allows US employers to hire up to 66,000 foreigners a year to fill seasonal nonfarm jobs. Employers apply for far more, and H-2B visas are distributed by lottery in two tranches, 33,000 for winter jobs and 33,000 for summer jobs.

In December 2021, DHS announced that an additional 20,000 H-2B visas would be available for the winter season, bringing the total to 53,000 and creating expectations that another 20,000 tranche would be added for the summer season, which would mean up to 106,000 H-2A visas in FY22. A third of the additional H-2A visas are reserved for citizens of Northern Triangle countries.

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