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July 2022, Volume 28, Number 3

H-2A; H-2B

DOL certified 193,200 jobs to be filled with H-2A workers in the first two quarters of FY22, up 16 percent from the 166,000 jobs certified during the first two quarters of FY21 and putting DOL on pace to certify more than the 317,600 jobs certified in all of FY21.

During the first two quarters of FY21, Florida accounted for 14 percent of certifications; California 13 percent; Georgia 11 percent; Washington eight percent; and North Carolina seven percent, so that the top five states accounted for over half of all H-2A certifications. The NCGA remained the largest H-2A recruiter with almost 5,900 jobs certified, followed by California’s Fresh Harvest with 3,800 jobs, California’s Foothill with 3,600, and California’s Elkhorn with 2,400 jobs.

California, Oregon and Washington have about half of US farm worker employment and a quarter of H-2A job certifications, suggesting that the H-2A program could grow fastest in the western states. H-2A workers are currently the highest share of all farm workers in southeastern states.

DOL’s Wage and Hour Division in May 2022 reported that 735 investigations found farms with H-2A violations in FY20 and FY21. WHD assessed $9 million in back wages for 13,408 workers, an average $680, and assessed $9.5 million in civil money penalties for these violations, an average $12,900 per investigation.

A federal judge in April 2022 upheld an earlier ruling that prevented DOL from freezing the AEWR at 2020 levels. The judge ruled that the government created the lack of FLS data to set AEWRs by cancelling the FLS, and ordered the USDA to resume the FLS. The judge ruled that DOL’s proposal to freeze the AEWR fails to protect US workers from the adverse effects of H-2A workers.

Towards Justice filed suit against the Western Range Association for violating the Sherman Act by conspiring with sheep farmers to depress the wages of H-2A sheepherders, who are mostly from Peru. A similar suit was dismissed in 2017.

USDA in June 2022 announced a $65 million pilot program to expand the pool of potential farm workers, to address challenges facing US employers seeking to hire Northern Triangle H-2A workers, and to ensure honest recruitment of H-2A workers. USDA announced a technical assistance cooperative agreement which the UFW is to inform USDA “of the challenges faced by agricultural workers and to inform development of the pilot program.”

OFLC made grants totaling $21 million to states to cover their cost of reviewing employer job orders, inspecting housing, and conducting prevailing practice and wage surveys. Most state SWAs spend their grants on job orders and housing inspections; few prevailing wage and practice studies are conducted.

WA’s SWA is an exception, augmenting its OFLC grant with state funds to survey employers and workers to obtain prevailing wages and practices. Until 2018, the employer survey relied on weighted averages, that is, multiply the employer’s piece rate or hourly wage for picking a particular variety of apples by that employer’s share of employment among the employers who responded.

DOL regulations require that the SWA obtain data from employers of at least 15 percent of total employment in a particular crop and activity to make a prevailing wage determination. No one knows peak, average, or total employment to prune, thin, or harvest Gala apples. In 2018, the WA SWA introduced a capture-recapture methodology used to estimate fish stocks to estimate peak employment and wages by variety of apples, cherries, and other crops.

Surveys were sent to all employers registered with the UI system in apples (NAICS 111331), 644 establishments in 2021, other noncitrus fruit (111339), 812, and non-strawberry berries (111334), 196 and several other NAICS. Some 1,258 surveys were sent in 2021, and 394 or 31 percent of employers responded.

The low response rate meant that only 10 of 118 possible crop and activities satisfy the 15 percent threshold, six in cherries and four in apples.

WA’s SWA used responses from 2018, 2019, 2020, and 2021 to estimate the number of employers by commodity, e.g. 1,129 apple employers, including 867 with Galas and 654 with Honeycrisp, 995 with cherries, including 808 with dark red cherries, and 671 with pears, including 647 with Bartlett pears.

The SWA reported the employment of responding employers and estimated total employment for crop and activity combinations that satisfied the at least 15 percent of total employment threshold. For example, the sample employers who reported harvesting Cosmic Crisp apples had peak employment of 2,312, which the SWA estimated was 43 percent of total Cosmic Crisp apple harvesting employment of 5,385. In the case of harvesting cherries, the sample employment of 4,813 was 17 percent of estimated total employment of 28,050.

The four apple prevailing wages established for 2021 were the hourly AEWR of $16.34, while piece rates for harvesting cherries ranged from $0.20 to $0.25 a pound. Employers did not report minimum productivity standards.

H-2B. There are 66,000 H-2B visas available, plus up to 57,000 more in FY22 for a total of 121,000. Adding H-2B visas in an ad hoc fashion led to a maximum 129,547 H-2B visas available in FY07.

DOL publishes data on the number of jobs certified to be filled by H-2B workers, and USCIS has published data on the number of H-2B workers approved for US employment since FY15. Almost half of H-2B workers approved in FY21 filled janitor jobs (building and grounds cleaning), followed by 12 percent in production occupations and 10 percent in farming occupations.

An EPI analysis of WHD enforcement activity between FY00 and FY21 noted that 80 percent of the 225,000 investigations of H-2B employers found violations affecting 1.8 million workers. Some 1.7 million workers were owed $1.8 billion in back wages, an average of almost $1,100 each. Back wages were highest in construction, an average $1,500 per worker, and lowest in amusement and hotels, some $500 to $600 per employee.

The purpose of the H-2B program is to allow employers who cannot recruit US workers to fill low-skilled and seasonal jobs with foreign workers. Some businesses rely on H-2B workers, who are vulnerable being underpaid or required do extra work because they are tied to their employers. If H-2B workers lose their jobs, they lose their right to be in the US legally.

Tying guest workers to jobs highlights a trade-off. Certification means that only particular jobs can be filled by H-2B workers, and guest workers can fill only these jobs.

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