January 2023, Volume 29, Number 1
H-2A: 372,000 Jobs
DOL certified 18,560 employers to fill 372,000 farm jobs with H-2A workers in FY22, up 17 percent from 317,000 jobs certified in FY21 and up fourfold since FY12. Some employers were certified multiple times; the number of unique employers was between 10,000 and 11,000.
Florida had 51,000 H-2A jobs certified in FY22; followed by 44,000 jobs certified in California; 35,000 in Georgia; 33,000 in Washington; and 25,000 in North Carolina. These five states accounted for 188,000 or half of all H-2A jobs certified.
Most H-2A jobs have been in the southeastern US since the H-2A program was modified by IRCA in 1986. However, the southeastern states account for a quarter of US farm jobs, and H-2A workers now dominate citrus and vegetable harvests in these states, suggesting that the growth of the H-2A program will be in other states.
The 10 largest H-2A employers accounted for almost 50,000 H-2A certifications or an eighth of the total. Two of the 10 largest were employer associations, one was a grower, and seven were FLCs.
Wages. AEWRs for 2023 range from a low of $13.67 in the southeastern states to a high of $18.65 in California. The average US AEWR in 2023 is $16.13 an hour.
DOL issued new H-2A regulations effective November 14, 2022 that clarify housing and meal requirements, allow DOL to debar attorneys and agents for misconduct independent of employer violations, and change the methodology and procedures for determining the prevailing wage. Only eight states produced prevailing wages that were posted on the OFLC ag wage library in 2022 (www.foreignlaborcert.doleta.gov/aowl.cfm).
Prevailing wage rate surveys (PWR) ask employers to report the wages they pay for specific tasks, such as the piece rate for picking a 925-pound bin of Gala apples. DOL eliminated the requirement that State Workforce Agencies survey workers to check on employer responses, the requirement that employers who account for at least 15 percent of the employment in an activity be interviewed, and allowed entities other than SWAs to conduct the surveys.
Some critics allege that, with PWRs based on employers of as few as 30 workers, PWRs could increase, especially if the PWR data collected are for the peak week of employment when the demand for labor is highest.
The new DOL regulations require ag FLCs, who account for almost half of H-2A job certifications, to obtain higher bonds. Instead of a maximum bond of $75,000 for employers with 100 or more H-2A workers, ag FLCs will have to pay a bond linked to the AEWR and the number of workers, so that a FLC with 300 workers may have to post a $200,000 bond. Bonds normally cost FLCs one to four percent of the bond amount.
Farm employers expressed disappointment that some of the changes DOL proposed in July 2019 were not included in the 2022 final rule, including allowing employers to file one H-2A application for groups of workers who arrive at different times, ending the recruitment of US workers 30 days after the contract period begins rather than halfway through the contract, and allowing H-2A housing to be certified for two years rather than one season.
WHD reported that it found violations of H-2A regulations in 358 cases in FY21 that resulted in $5.8 million in back wages for 7,000 H-2A and US farm workers.
The Farm Workforce Modernization Act approved by the House in March 2021 is supported by most farm associations and some unions. The FWMA would grant unauthorized farm workers 5.5 year visas, make it easier for employers to hire H-2A workers, and require farm employers to use E-Verify to check new hires. Many Republicans said they were unwilling to vote for the FWMA until the Mexico-US border is secure.
Senator Michael Bennet (D-CO) introduced a version of the FWMA, the Affordable and Secure Food Act, in December 2022. The ASFA offers legalization to unauthorized farm workers and their dependents, limits AEWR increases and provides up to 26,000 visas a year for year-round farm jobs, including half for dairies, and requires farmers to use E-Verify when hiring workers. The ASFA would cap the AEWR at 2022 levels and limit increases to three percent a year through 2034.
As with IRCA in 1986, the ASFA would create a multi-agency task force to determine if farm labor shortages justify increasing or eliminating the cap on H-2A visas to fill year-round jobs.
In a bid to attract Republican support, the ASFA would have shifted horse track workers from the H-2B to the H-2A program. However, the Senate did not include the ASFA in a $1.7 trillion omnibus bill that funds the government for FY23. The AFBF opposed both the FWMA and the ASFA, citing the use of USDA’s Farm Labor Survey to determine the AEWR and provisions in both bills that extend MSPA protections to H-2A workers.
H-2B. DHS plans to issue up to 130,716 H-2B visas in FY23, the maximum number permitted. The annual quota is 66,000, but Congress allows DHS to issue an additional 65,000 visas to foreigners who fill seasonal jobs in a variety of industries including landscaping, fisheries and tourism.
Some 20,000 of the additional H-2B visas are reserved for citizens of Haiti and the Northern Triangle countries of Guatemala, Honduras and El Salvador; the other additional visas are for H-2B workers returning to their previous US employers. Some 55,000 additional H-2B visas were made available in FY22.