Apr 21, 2017
H-2A struggles to keep up with grower demand

H-2A, the country’s agricultural guest-worker program, continues to grow.

According to the U.S. Department of Labor (DOL), the number of H-2A workers jumped from 77,246 to 165,741 between 2011 and 2016. Since 2001, there’s been a 106 percent increase in H-2A certifications. Certifications in Florida, North Carolina, Georgia, California, Arizona and Washington have doubled since 2011, according to DOL.

In Washington state, H-2A labor certifications topped 15,000 last year, compared to just over 12,000 in 2015, said Dan Fazio, executive director of wafla (formerly the Washington Farm Labor Association).

In 2010, Florida employed about 4,500 H-2A workers. By 2016, that number had risen to more than 22,800, said Michael Carlton, director of labor relations for the Florida Fruit & Vegetable Association.

The H-2A program is for seasonal workers, generally for a period of 10 months or less, to provide farms with short-term agricultural labor when the number of available domestic workers is insufficient.

The program has been criticized because it authorizes only a fraction of the workers needed each year. Growers have pointed to the cost of using the program and delays in allowing workers to enter the program as significant challenges. Provisions in the law requiring growers to demonstrate efforts to hire local employees are difficult to meet because native workers often aren’t interested in pursuing open positions, according to Frank Gasperini, executive vice president of the National Council of Agricultural Employers (NCAE).

Source: Office of Foreign Labor Certification, U.S. Department of Labor

Employers who want to hire workers on H-2A visas first have to apply with DOL, which verifies there are not enough able U.S. workers to fill the jobs and makes sure hiring foreign workers won’t hurt wages or working conditions for U.S. workers. If approved by DOL, the employer then applies with U.S. Citizenship and Immigration Services for the visas, which workers can apply for in their home countries, according to DOL.

According to statistics from DOL’s Office of Foreign Labor Certification (OFLC), the top five states (see accompanying chart) using H-2A labor in 2016 were Florida, North Carolina, Georgia, Washington and California. They were followed by Louisiana, Kentucky, New York, Arizona and South Carolina.

Associations are frequently used to pool resources in obtaining an H-2A workforce. According to OFLC statistics, the top 10 agricultural employers using H-2A workers in 2016 were led by the North Carolina Growers Association and wafla.

Farmworker contractors also lead the way in obtaining H-2A labor. Third on the employers’ list released by OFLC is Fresh Harvest, a Heber, California-based labor provider, staffing company and harvesting firm.

“H-2A is presently the only legal solution to fill the growing need for agriculture labor where there is a lack of local workers available to fill the necessary positions for crops to be grown or fully harvested,” according to Fresh Harvest’s webpage.

According to DOL, the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) requires a contractor to obtain federal certification prior to performing any farm labor contracting activities.

Certified contractors’ list


There are dozens of certified farm labor contractors across the country who appear on a DOL list found at www.dol.gov/whd/ regs/statutes/FLCList.htm.

These contractors have obtained a federal certificate of registration authorizing the holder to perform farm labor contracting activities under MSPA. The list is updated quarterly. Only a person holding a valid certificate issued by the Secretary of Labor may engage in farm labor contracting activities. A list of ineligible contractors can be found at www.dol.gov/whd/regs/statutes/mspa_debar.htm.

The certified list contains the name and address of all current certificate holders, as well as the expiration date and certificate number generated by DOL’s Wage and Hour Division. The list also indicates if the contractor has been authorized to house workers, to use vehicles to transport workers or to drive such vehicles.

Growers should keep a lookout for changes regarding the H-2A and H-2B visa programs for foreign workers. Labor relating to production and other work within a greenhouse falls under the H-2A program, whereas labor relating to the installation of plants and landscape work falls under the H-2B program for non-agricultural jobs, according to Craig Regelbrugge, senior vice president of industry advocacy and research at AmericanHort.

The most important distinction between the two programs is the cap placed on the number of visas issued under the H-2B program, limited to 66,000 a year. The H-2A visa program does not have a yearly cap, Regelbrugge said.

Use of H-2A has grown in areas that traditionally did not use it, such as California, Washington and Michigan.

In fiscal year (FY) 2015, OFLC certified 139,832 H-2A positions. There was an increase of 18 percent in the number of positions requested for H-2A job opportunities, and an increase of almost 9 percent in the number of H-2A temporary employment applications certified in FY 2015 over FY 2014, according to OFLC.

Great Lakes Ag Labor Services (GLALS), formed by Michigan Farm Bureau, is helping Michigan growers obtain H-2A labor. According to Bob Boehm, the general manager, GLALS worked with 705 H-2A workers in 2016 and is predicted to work with more than 1,200 in 2017.

In 2015, nursery and greenhouse workers were among the top 10 occupations using H-2A labor, with 5,109 certified positions, Regelbrugge said.

Guidelines


Precise timelines for application deadlines and other steps throughout the process are specified in OFLC’s regulations, available at www.doleta.gov.

A big challenge with H-2A is the bandwidth – the government’s capacity to process applications as demand grows, according to NCAE’s Gasperini.

In theory, H-2A could meet U.S. agriculture’s seasonal labor needs (up to 2 million workers) because there’s no cap on the number of workers who can be hired. But housing barriers and limited regulatory resources create a “de facto cap,” Gasperini said. He guessed that 250,000 to 300,000 workers would be enough to overwhelm H-2A’s capacity.

Three government agencies are involved in the H-2A visa program. The process starts with DOL, then goes to the U.S. Department of Homeland Security and the U.S. Department of State.

Gasperini said delays can occur at any stage. The administration of Donald Trump has also sent signals it intends to further alter the review process, possibly leading to further delays.

Challenges


Adam Kantrovich, farm business management Extension educator at Michigan State University, said use of H-2A labor brings multiple challenges for growers.

“It’s a very complicated system – the paperwork is a nightmare,” he said at a recent agriculture employers’ meeting in West Olive, Michigan. “You can go through the process on your own or utilize labor contractors to assist you through the process. Be careful. You get what you pay for.

“Questions that need to be answered include: Who pays the employees – the farm or the contractor? Who has responsibilities for housing and transportation? There are tax and (health care) considerations.

“H-2A workers are in the U.S. legally, therefore they must be in compliance with the (Affordable Care Act) unless otherwise exempt,” he said.

H-2A employers must pay the higher of the federal minimum wage, state minimum wage or adverse effect wage rate.

For resident and non-resident aliens, wages are exempt from Social Security and Medicare taxes. Compensation for H-2A services is not considered wages for purposes of federal income tax withholding and not subject to mandatory withholding unless “backup withholding” applies. If the laborer and employer agree, then federal, state and local income taxes can be withheld. If there are no withholdings, estimated tax payments may be required by the H-2A workers, he said.

Kantrovich said the cost compared to using non-H-2A workers depends on the length of the contract and other variables.

“I have seen from near equal costs to it being 40 to 60 percent higher,” he said.

“Contractor costs vary significantly, depending on services rendered/ expected. Some contractor quoted costs could be as high as an additional 70 percent to 80 percent of hourly wage paid per employee ($21.68 an hour using Michigan 2017 adverse effect wage rate).”

Kantrovich said other H-2A contractors will charge a per-laborer flat fee plus base that covers recruitment, paperwork assistance, transportation to and from home (only) and employee “on-boarding.” The farm is still responsible for housing, weekly transportation and all hourly wages. Costs range between $1,200 and $2,500 or more.

Another factor: “Expect some federal agency at your door for an audit in year one,” Kantrovich said. “Even if you rely on a contractor, you will be considered a joint employer and responsible for any screw-up of the contractor.”

Another concern is that penalties for H-2A violations can be costly to growers caught up in an infraction by their operation – or by an affiliated labor contractor, he said.


Additional resources


Applying for H-2A labor can be a complicated process, with timelines and regulations established by each federal agency involved. The U.S. Department of Labor (DOL), Department of Homeland Security and Department of State each have online resources for employers seeking foreign labor.

Department of Labor – foreignlaborcert.doleta.gov
Employers must first apply for labor certification through DOL. The Office of Foreign Labor Certification page on the DOL website provides filing tips, answers to frequently asked questions and application time frames for foreign labor programs.

Department of Homeland Security – uscis.gov
Once an employer receives application approval, they must file a petition with U.S. Citizenship and Immigration Services for a visa. On the “Working in the US” page on the USCIS website, employers can find information on qualifications for the H-2A and H-2B programs and on how to petition on behalf of a worker.

Department of State – travel.state.gov
It is the foreign worker’s responsibility to apply for a visa through a U.S. embassy or consulate, but it is important for employers to be aware of the process. Under the “Employment” tab, the department’s website outlines the application process, fees and required documentation.

— Gary Pullano, associate editor


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