The current guest worker program in agriculture is the H-2A program.
Its origins go back to the Immigration and Nationality Act of 1952, which created the H-2 category for temporary workers coming to the United States.
In 1986, the Immigration Reform and Control Act divided H-2 into two categories, H-2A for agricultural workers and H-2B for nonagricultural workers.
Among its chief provisions are the following: first, foreign-born workers are permitted to come to the United States to perform seasonal labor on a temporary basis up to 10 months (livestock workers on the range, such as for sheep and goats, may work year-round.)
Second, employers must be able to certify that they have attempted to recruit U.S. workers for these jobs but were unsuccessful.
Third, employers must pay a state-specific minimum wage, computed from the average wage for the previous year, called the adverse effect wage rate (AEWR). In 2020, this hourly wage ranged from $11.71 in Alabama, Georgia, Florida, and South Carolina to $15.83 in Oregon and Washington, according to ERS.
Next, employers must pay for domestic and international transportation and provide housing for workers in the program.
Recent adjustments
On April 15, 2020, the federal government introduced new provisions that loosened some of the H-2A program’s restrictions. Richard Owen, former vice president of global membership and engagement for the Produce Marketing Association and now president and CEO of the American Peanut Council, explains some of them.
“Before the changes, applicants had to go into their local consulate and go through the process of getting an interview to be considered again.”
This requirement has been lifted. Furthermore, Owen added, “Employees can move between employers. There has to be agreement on both sides, and they have to stay within agriculture itself.”
“Let’s be clear: the H-2A program is incredibly fair and humane to workers, foreign and domestic,” says Jason Resnick, vice president and general counsel for Western Growers Association BB #:144734. “First, the law ensures that every willing and qualified U.S. worker who wants an agricultural job will get one and never be displaced by a guest worker.
“As for the guest workers, the law prevents them from being charged to secure an H-2A job. They receive above-market wages, free transportation, and housing that must meet the highest of local, state, and federal standards. They also have all the state and federal employment law and health and safety protections that U.S. workers have.”
Even so, the H-2A program is not beloved by employers, who regard some of its provisions, such as providing housing and transportation, to be burdensome and costly. But they have had to resort to it more and more.
The ERS website points out, “One of the clearest indicators of the scarcity of farm labor is the fact that the number of H-2A positions requested and approved has increased fivefold in the past 14 years, from just over 48,000 positions certified in fiscal 2005 to nearly 258,000” in 2019.
This rise in H-2A comes from another source as well: the long-overdue acknowledgment that domestic workers are not going to meet the need for agricultural labor. Although recruitment requirements remain, the Department of Labor has been certifying the vast majority of H-2A worker requests, with few U.S. workers seeking these jobs.
This is a feature from the the March/April issue of Produce Blueprints Magazine. Click here to read the full issue.
