In order to hire foreign workers through the H-2A program, employers must obtain a temporary labor certification from the Department of Labor. To do this, employers must demonstrate that the job is of a temporary or seasonal nature; that there are not enough U.S. workers who are “able, willing, qualified and available to perform work at the place and time needed;” and that the wages and working conditions of workers in the United States will not be “adversely affected” by the importation of guest workers. To demonstrate the above factors, employers are required to recruit and hire US workers and to offer certain labor protections required by the program, such as minimum wage requirements and free housing, among others. If the employer obtains a labor certification from the Department of Labor, the employer submits the labor certification along with a petition for a nonimmigrant worker to US Citizenship and Immigration services (USCIS). Once USCIS has approved the employer’s petition for nonimmigrant workers, the prospective workers outside the United States can apply for an H-2A visa with the US Department of State at a US embassy or consulate abroad and to U.S. Customs and Border Protection for admission to the United States in H-2A classification.

► Read the current H-2A regulations

The H-2A program includes certain long-standing worker protections. In 2008, shortly before leaving office, the Bush administration made drastic changes to the H-2A program, cutting wages and reducing or eliminating other critical worker protections. In 2009, Secretary of Labor Solis issued new regulations, largely restoring the pre-Bush regulations that had been in effect since 1987. The current protections for workers include:

Wages must be at least the higher of: (a) the local “prevailing wage” as determined by DOL and state agencies; (b) the state or federal minimum wage, or (c) the “adverse effect wage rate” (AEWR) the average wage of nonsupervisory field and livestock workers as determined by a USDA survey.

Recruitment obligations require employers to use the interstate Employment Service system (a joint system of the federal government and state workforce agencies) and private-market methods of recruiting workers, known as “positive recruitment,” to locate U.S. workers.

The “fifty percent rule” is the principal job preference mechanism for U.S. workers. It requires H-2A employers to hire any qualified U.S. worker who applies for work until one-half the season has ended. Due to the nature of seasonal work, many farmworkers arrive after the first day of the season, and many farms do not need their full labor force until later in the season.

The three-fourths minimum work guarantee requires that employers provide recruited workers with employment opportunities for at least three-quarters of the number of hours in the job offer or pay for any shortfall (with exceptions for Acts of God). This provision protects against over-recruitment designed to drive down wages and assures migrants who travel long-distances that the job will be worth the trip.

Workers who complete half the season at an H-2A program employer must be reimbursed for the transportation and subsistence costs associated with traveling to the place of employment. Those who complete the full season must be paid for their transportation costs of returning home.

H-2A employers must provide housing for their workers at no cost to the worker. The housing must meet federal and state safety standards.

Employers soliciting H-2A workers must provide workers’ compensation insurance for occupational injuries (but not health insurance coverage).

These modest protections are vital to preventing the H-2A guestworker program from displacing U.S. workers, driving down wages and working conditions, and allowing agribusiness employers to increasingly rely on “cheap foreign labor” to harvest our nation’s crops. Most of these protections existed even under the notoriously abusive Bracero guestworker program. Even with these protections, violations of the rights of U.S. workers and guest workers by H-2A program employers are rampant and systemic. For example, in 2011, the Equal Employment Opportunity Commission filed a lawsuit against the Georgia grower Hamilton Growers, Inc. based on the company’s national origin discrimination against American workers, which included firing US workers while retaining Mexican H-2A workers, assigning the US workers to less favorable job assignments, and assigning them tasks where they earned less money. More information about the lawsuit is available here and more information about the inherently abusive nature of the H-2A program can be found in Farmworker Justice’s report, No Way to Treat a Guest: Why the H-2A Agricultural Visa Program Fails U.S. and Foreign Workers.There have been a number of exposés over the years about the H-2A and similarly structured H-2B guestworker programs and the failure of the U.S. government to prevent and adequately punish violations of the law and regulations by the employers.

We engage in advocacy in Congress and with the Administration to improve H-2A program protections and increase oversight and enforcement of those protections. We also file lawsuits on behalf of farmworkers and their organizations to challenge systemic abuses by employers and their labor contractors and unlawful conduct by government agencies. Farmworker Justice also fights back one-sided guestworker proposals that would expand the H-2A program to year-round work while eliminating or drastically reducing worker protections. Farmworker Justice advocates for immigration reform to legalize undocumented farmworkers and make balanced changes to the H-2A program that would eliminate incentives to hire guestworkers instead of US workers.

Data on the H-2A program are collected by a number of different government agencies, though none have a definitive count of the number of H-2A workers in the United States:

The U.S. Department of Labor (DOL)

Reports the number of H-2A positions requested by growers and approved by the Office of Foreign Labor Certification.

Posts H-2A and H-2B job orders.

Provides information about program regulations and usage, including public job registry, FAQs, fact sheets, debarments, employer handbook and more.

The U.S. Department of State (DOS)

Reports the number of H-2A visas given out during a given year, although this number is not a complete number of all H-2A workers, as it excludes Jamaican and some other Caribbean farmworkers.

The U.S. Department of Homeland Security (DHS)

Reports the number of entries into the U.S. on H-2A visas. Some workers may enter and exit the country multiple times during their work contract.

USCIS provides information about the H-2A program requirements, including foreign countries that are eligible to participate.

The purpose of the Adverse Effect Wage Rate (AEWR) is to overcome and prevent depression of prevailing wages. Shortly before leaving office, the Bush administration made devastating changes to the H-2A program. The extensive changes slashed farmworker wages, reduced worker protections such as transportation reimbursement, limited the ability of US farmworkers to obtain needed jobs, permitted the discriminatory treatment of US farmworkers in wages and benefits, and dramatically reduced government oversight and enforcement. Under the Bush regulations, farmworkers‘ wages dropped by about 10% and in 2009, resulted in about $1,616 in lost wages for each worker employed by an H-2A employer.

Within a month of being confirmed, Secretary of Labor Solis attempted to suspend the Bush regulations but was successfully enjoined by the growers. In February 2010, Secretary Solis issued new regulations that took effect on March 15, 2010, largely restoring the pre-Bush regulations that had been in effect since 1987, adopting some changes made by Bush-Chao (most of which the growers opposed), and making some other modest improvements. These H-2A rules are critically important in protecting the wages and working conditions of US workers and in preventing the displacement of US workers with vulnerable foreign guestworkers.

► Farmworker Justice Adverse Effect Wage Rate Rule Factsheet

   ► Farmworker Justice  Factsheet: The Bush Administration’s Shameful Legacy for Farmworkers: Midnight Bush Administration H-2A Program Regulations.

► Read our press release about the Obama-Solis restoration of pre-Bush H-2A Protections

► Adverse Effect Wage Rates from 2000 – 2015

► Adverse Effect Wage Rates from 2010 – 2015

► Current Adverse Effect Wage Rates posted by Department of Labor