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April 2022, Volume 28, Number 2

H-2A Guest Workers

The H-2A program allows farmers who anticipate labor shortages to be certified by DOL to recruit and employ H-2A workers to fill seasonal jobs that last up to 10 months. There is no cap on the number of H-2A workers, and about 10,000 US farm employers were certified to fill 317,000 seasonal farm jobs with H-2As in FY21.

The number of jobs certified has been increasing, tripling over the past decade. About 80 percent of H-2A jobs certified result in the issuance of H-2A visas; some 258,000 H-2A visas were issued to foreigners in FY21. Over 99 percent of H-2A visas went to citizens of four countries: Mexico, 93 percent; South Africa, three percent; Jamaica, two percent; and Guatemala, one percent.

Over half of H-2A jobs are in five states: California, Florida, Georgia, North Carolina and Washington. The share of H-2A jobs in these five states rose from 34 percent in 2007 to 52 percent in 2021 due to the growth in each state and especially in California and Washington.

Recruitment. H-2A regulations require employers to pay all worker expenses, including the cost of the H-2A visa and the cost of travel from US consulates to and from US workplaces. Regulations prohibit US employers or their agents in migrant-sending countries from charging workers for US jobs that may pay 10 to 20 times more than the workers could earn at home.

There are more workers who want H-2A visas than there are H-2A jobs, so some workers pay recruiters for jobs. A survey of over 400 workers in Mexico conducted via mobile phones over eight months in 2020-21 found that many felt unable to leave their farm jobs, had to pay their own travel costs to return home, or had to cover some of their expenses while traveling to their farm jobs. Migrants wanted freedom from threats at workplaces away from home and guarantees of no unexpected expenses.

Cierto Global is one of the few recruiters certified by the Mexican government. Cierto relies on community groups to recruit workers and certify that they did not pay to obtain H-2A contracts, and provides training so that the workers are productive in the US. Cierto charges $250 per worker recruited.

AEWRs. DOL issued proposed regulations December 1, 2021 that would replace the current system of one AEWR for all H-2A workers in a state with several AEWRs per state that reflect the type of job being filled. The purpose of the change is to deal with mis-classification, as when employers call truck drivers or construction workers farm workers in order to pay them the lower AEWR wages derived from crop and livestock workers.

The current AEWR is the average hourly earnings of crop and livestock workers who were hired directly by farmers during the previous year, so that California’s $17.51 AEWR for 2022 reflects the average hourly earnings of the state’s crop and livestock workers in 2021. USDA surveys 18,000 US farms in July and October, and half report employment and earnings data for the week that includes the 12th of January, April, July, and October. USDA divides earnings by hours worked to obtain average hourly earnings for 15 multistate regions and California, Florida and Hawaii.

DOL proposed that AEWRs for the 10 percent of H-2A jobs that are not covered by the USDA survey, including supervisors, drivers, and construction laborers, be the average wages determined by the Occupational Employment and Wage Statistics survey. In 2020, when the average US AEWR was $14 an hour, the average US OEWS wage for heavy truck drivers (SOC 53-3032) was over $23 and for construction laborers (47-2061) almost $21. DOL proposed that workers with several different jobs, such as harvesting and driving, should be paid the highest AEWR for all their hours worked.

DOL normally accepts employer job descriptions of what H-2A workers will do. Farm employers who now employ drivers and construction laborers as crop workers would have an incentive to mis-classify their jobs as crop workers in order to pay lower wages.

The House approved the Farm Workforce Modernization Act (HR 1603) and the Dream and Promise Act (HR 6) in 2021, but the Senate did not act on these bills.

DHS in March 2022 announced that it would make an additional 35,000 H-2B visas available in addition to the 33,000 available for the April-September 2022 period, with two-thirds for returning H-2B workers and a third set aside for citizens of Northern Triangle countries and Haiti. There are 66,000 H-2B visas available each year, 33,000 for each six month period. In FY21, DHS added 20,000 H-2B visas to the 33,000 available each six months.

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