The H-2A program allows agricultural employers to hire foreign workers when there is a shortage in domestic labor. According to Philp Martin from UC Davis and Zachariah Rutledge from Arizona State University, H-2A workers account for approximately ten percent of all agricultural labor used in crop production the United States. This article will discuss two significant developments in the H-2A program – 1) proposed regulations by DOL and DHS altering H-2 program requirements and 2) the Farm Labor Stabilization and Protection Program, a pilot grant program to provide funding to employers utilizing the H-2A visa program.
Background on the H-2A Visa Program
The H-2A program is a visa program for temporary and seasonal agricultural workers. The purpose of this program is to meet the United States’ (“U.S.”) agricultural labor needs by allowing employers to employ temporary foreign workers. The program is managed by three federal agencies. The Department of Labor (“DOL”) issues the H-2 labor certifications and ensures employers are complying with labor laws. U.S. Citizenship and Immigration Services, an agency within the Department of Homeland Security (“DHS”), oversees the H-2 petitions. Department of State, through their consulates, issues visas to workers.
To qualify for the program, an employer must “offer a job that is of a temporary or seasonal nature, demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work, show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers, and submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition”. U.S Citizenship and Immigration Services, H-2A Temporary Agricultural Workers. Under the current program, the Department of State will only approve petitions for workers from a list of eligible countries. The list of eligible countries is posted in the Federal Register and is updated every year. The Secretary of Homeland Security can approve petitions for workers from countries not on the eligible list if “it is in the U.S. interest for the national to be the beneficiary of such a petition.”
DOL Proposed Rule
On September 15, 2023, DOL posted a notice of proposed rulemaking in the Federal Register amending its regulations governing the H-2A visa program. Its purpose is to “further strengthen protections for agricultural workers and enhance the Department’s enforcement capabilities, thereby permitting more effective enforcement against fraud and program violations.” The DOL proposed rule addresses multiple areas where changes are proposed – increasing protections for workers who advocate for better working conditions, clarifying the definition of justifiable termination for cause, updating the effective date of adverse effect wage rates, and other protections including an expansion of information that must be given to both DOL and employees.
Under the proposed rule, DOL would broaden protections for employees who organize to change working conditions through self-organization. The proposed rule would protect employees from intimidation, threats, restrain, coercion, or any form of discrimination for participating in self-organization. Examples of protected activities include forming or joining labor organizations or secondary activities of boycotting and picketing. Employees who refuse to participate in these activities would also be protected. These activities would only be protected during nonproductive times, like lunch or rest breaks and time after the workday has ended.
Additionally, employers could not restrict employees from allowing guests to visit their employer-provided living quarters, common areas, or outdoor spaces during nonproductive times. However, employers would still be able to impose other reasonable restrictions related to worker safety or enjoyment of the housing. For example, employers may restrict guest access to shared sleeping facilities during sleeping hours. According to DOL, this proposed change seeks to provide workers with additional protection because there have been documented situations where legal and medical professionals have been denied access to facilities.
The proposed rule would clarify that a worker is terminated for cause if “the employer terminates the worker for failure to meet productivity standards or failure to comply with employer policies or rules.” Further, the proposed rule outlines six conditions that the employer must comply with to terminate an employee for cause. Additionally, the proposed rule would update the effective date of adverse effect wage rates to the date the rates are posted in the Federal Register. In other words, employers would be required to pay the updated rates as soon as the rates are posted.
The proposed DOL rule seeks to provide transparency during the H-2A worker recruitment process. Under the proposed rule, additional forms would be required when an employer completes their H-2A program application. These additional forms seek to collect information about the recruitment process employers are utilizing. Employers would be required to provide the DOL with a copy of any agreements the employer makes with agents or recruiters during the recruitment process. The employer would also be required to provide the DOL with the identity and geographic location of the agents or recruiters.
The proposed DOL rule also seeks to provide transparency on wages, safety requirements, and document withholding for H-2A workers. Under the proposed rule, employers would be required to disclose to employees any minimum productivity standard that could be used for termination. If the employee is paid at a rate per piece, the employer will be required to disclose that piece rate in the job order. If the employee is paid hourly, the employer will be required to disclose the highest applicable hourly wage rate in the job order. In other words, these proposals would increase transparency by notifying workers, in advance, of the pay they should expect to receive for the work they do. The proposed rule would require all employer-provided vehicles to have seatbelts, all employees to wear seatbelts in the employer-provided vehicles, and employers to maintain the seatbelts in good working condition. Lastly, the proposed rule would prohibit employers from withholding or confiscating any immigration or government identification documents from employees.
DHS Proposed Rule
On September 18, 2023, DHS posted a notice of proposed rulemaking in the Federal Register amending its regulations governing the H-2A and H-2B visa programs. The purpose of the proposed rule, as laid out by DHS, is to “strengthen worker protections and the integrity of the H-2 programs, provide greater flexibility for H-2A and H-2B workers, and improve program efficiency.”
In the proposed rule, DHS addresses fees that may be required to be paid by H-2 workers in order to take part in the program. Currently, fees paid by H-2 workers as a condition of their employment are prohibited. The proposed rule would update that language to state that fees paid by H-2 workers related to their employment are prohibited. This change would expand the scope of prohibited fees to include employer’s agent or attorney fees, fees to prepare and submit the visa petition, recruitment costs, and breach of contract fees. However, fees primarily for the benefit of the worker, such as passport fees, are not prohibited and the costs could be passed on to the worker.
The proposed rule also includes consequences for violations. For example, DHS could deny a petition, revoke an approved petition, or even prevent a violator from participating in the program for an extended period of time in a situation where an employer or farm labor contractor was charging prohibited fees. The proposed rule also updates the grounds for denying H-2 petitions when an employer has violated labor laws or requirements of the H-2 programs. DHS has proposed three mandatory and several discretionary grounds for denial. Mandatory grounds for denial would include an attempt to submit petitions during a banned period, engaging in fraud or misrepresentations in petitions, or illegally assisting a non-citizen in entering or remaining in the United States, as defined by 8 U.S.C. § 1324(a).
The proposed rule would also clarify the scope of on-site DHS inspections. Specifically, employers would be required to allow inspectors access to facilities, employees for interview, and compliance records for review. Further, inspectors must be able to inspect all housing facilities or locations where work is being done. Additionally, inspectors must be given access to employees for interviews outside the presence of the employer or their agent. In conjunction, the proposed rule provides whistleblower protection for employees who report violations or cooperate with investigations.
DHS also proposed an update to “grace periods” for the H-2 programs. Grace periods for H-2 workers allow workers to be in the U.S. outside their specified employment window. The proposed rule would add an initial grace period to the H-2A program of ten days to allow workers, their spouses, and dependents time to prepare for their employment. Further, it would allow workers a sixty-day grace period after their employment ended, as long as the authorized work period was still in effect. In other words, H-2A workers would be permitted to remain in the U.S. for up to sixty days or until the end of their authorized work period if the worker resigned or was terminated. Similarly, the proposed rule would also create a new sixty-day grace period for workers when their employer’s H-2 petition is revoked. In that situation, the employer would also be responsible for return transportation to the worker’s last place of foreign residence.
Lastly, the proposed rule seeks to eliminate the list of eligible countries to alleviate the burden of posting a new list of eligible countries every year. Comments can be submitted on regulations.gov and the comment period will close on November 20, 2023.
USDA Grant Program
On September 22, 2023, the Biden-Harris Administration announced that USDA had launched the Farm Labor Stabilization and Protection Pilot Program, which provides up to $65 million in grants to eligible employers of H-2A workers.
The purpose of the program, as laid out by USDA, is to “address current labor shortages in agriculture”, “reduce irregular migration from Northern Central America through the expansion of regular pathways”, and “improve working conditions for farmworkers”. The program will be administered by the Agricultural Marketing Service and individual grants will range from $25,000 to $2,000,000. The amount of the award is based on the number of full-time employees and the employer’s commitment to improving working conditions. Therefore, the higher the commitment to improving working conditions for agricultural workers, the higher the award amount. The grant can be used for a broad list of expenses including costs related to hiring, wages, and some housing and administrative costs.
Eligible agricultural employers include those with “an employment relationship with respect to an H-2A worker or a worker in corresponding employment”, who “file an Application for Temporary Employment Certification other than as an agent”, or who “is a person on whose behalf an Application of Temporary Employment Certification is filed”. Eligible employers include fixed-site employers, joint-employers, agricultural associations, and H-2A labor contractors. To qualify for the grant program, employers must be able to meet baseline requirements outlined in the program requirements.
The application can be found on grants.gov. An employer must register on grants.gov before applying for the program, and registration can take up to four weeks. The application period will close on November 28, 2023.
According to USDA Economic Research Service, 298,000 H-2A visas were issued in 2022, which is about a fifteen percent increase from 2021.Accordin to Jeff Luckstead and Stephen Devadoss’s article in the Agricultural and Applied Economics Publication, Choices, in 2017, approximately thirty-five percent of H-2A workers worked on fruit and nut farms and twenty-six percent worked on vegetable farms. According to the Center for Immigration Studies, in 2017, four crops accounted for twenty percent of H-2A labor – apples, tobacco, blueberries, and other fruit. DOL, DHS, and USDA published these proposed rules and grant program to combat domestic labor shortages and increase protections for workers in the H-2A program.
To read the DOL proposed rule, click here.
To read the DHS proposed rule, click here.
To read the USDA grant program rules, click here.
To read a previous NALC article discussing collective bargaining for agricultural workers, click here.
For more NALC resources on labor, click here.