H-2A Program Growing at Unprecedented Rate; Worker Protections at Risk

The latest Department of Labor data show tremendous growth in the H-2A temporary foreign agricultural worker program. The DOL approved almost a quarter of a million—a total of 242,762—H-2A positions in fiscal year 2018. In just the last year, the number of approved H-2A jobs grew by 21% and the number of employer applications grew by over 16%. The program has tripled in size in the last decade: in 2008, 82,000 positions were certified.

Continued massive expansion of the H-2A program is expected as there is no cap on the number of workers who may be brought in on H-2A visas. Moreover, the anti-immigrant rhetoric and actions of the Trump Administration and its allies in Congress are further driving the increase of the H-2A program. In the absence of immigration reform that would grant legal immigration status to current undocumented farmworkers, each year more employers request and receive approval to hire H-2A workers. The Administration’s anti-immigrant and nativist agenda is highlighted by their support for an exploitative model of temporary indentured workers rather than an immigration system that welcomes immigrants and new citizens.

This rapid growth of the H-2A program is deeply troubling because the H-2A program exploits both guestworkers and domestic workers and should not be expanded. A recent example highlights the abusive nature of the H-2A program. Over the summer, the Department of Labor’s Wage and Hour Division (DOL WHD) won a court injunction against an H-2A employer in Missouri. WHD investigators found that in addition to wage violations, the employer had provided unsanitary and unsafe housing, with some of the workers housed in a former jail. Workers reported fainting from heat stroke, and the fields where they were working lacked adequate access to water and restroom facilities. This example is far from unique. The anti-trafficking organization Polaris recently released a report on human trafficking in temporary work visa programs which showed that the category with the most reported trafficking cases—over 300—was the H-2A program.

Unfortunately, the massive expansion of the H-2A program has not been accompanied by increased resources for enforcement of employers’ obligations. Moreover, we are seeing multiple efforts to strip labor protections from the program and allow new categories of businesses access to captive H-2A visa holders. For example, a rider was added to the FY 2019 House DHS appropriations bill that would expand the H-2A program to include year-round employment in agriculture. This change would undermine the intent of the H-2A program to address more-difficult-to-fill temporary and seasonal jobs. It also would result in displacing many of the documented and undocumented immigrants who depend on these jobs for their livelihood, ensure their employers’ productivity and are integral members of their rural communities.

Another threat comes from anticipated changes to regulations to eliminate key protections in the program. In May 2018, the DOL, DHS, State Department, and USDA jointly announced their intent to “modernize” and “streamline” the H-2A program to “deliver for America’s farmers.” The DOL’s recently-published regulatory agenda includes several proposed changes in the H-2A program. Farmworker Justice is concerned that the Administration will seek to strip away essential labor protections and oversight.

Farmworker Justice opposes any changes to the H-2A program that would expand the scope of the program to year-round work or that would lower wages or otherwise reduce worker protections or DOL oversight. Policymakers should not convert our agricultural workforce into a massive system of indentured temporary workers deprived of the right to vote. A key solution to reforming our broken immigration system is providing a path to immigration status and citizenship for farmworkers and their families.

H-2A Program Trends and Observations

Growth in States

• From FY 2017 to FY 2018, several states saw significantly large increases in program usage, including an increase of 38% in Georgia, 34% in Washington, 30% in Michigan, 24% in Arizona and California, and 20% in Florida.
• Georgia is now the number one state for number of H-2A positions certified, with 32,364 positions certified; Florida is in a close second at 30,462 positions certified. With an estimated total of roughly 61,000 farmworkers in Georgia, the number of H-2A jobs approved accounts for about half of all farmworkers in Georgia.[1]

H-2A Top Employers

• The top three employers in the H-2A program are labor contractors or growers’ associations, rather than individual farms.
• Top employers have increasingly been using the H-2A program to fill non-agricultural tasks such as construction in farming operations. For example, a recent article detailed employers’ use of the H-2A program to fill farm construction jobs with H-2A workers. One of the companies mentioned in the article, Alewelt Concrete, Inc, was the fifth largest employer for all of the H-2A program in FY 2018.

Crops and Occupations in the H-2A Program

• The top crop for the H-2A program in FY 2018 was once again berries, at over 25,000 worker positions certified. The “General Farm Workers” category is a close second with about 24,000 worker positions certified. Other top 10 crops/occupations include tobacco, apples, melons, fruits and vegetables, lettuce, corn, cherries, and nursery and greenhouse workers.

Source: Selected Statistics, FY 2018, H-2A Temporary Foreign Labor Certification Program, Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor.

Farmworker Justice, October 30, 2018

[1] National and State Estimates of the Number of LSC-Eligible Agricultural Worker Populations, Table I Final State and National Estimates of the LSC-Eligible Agricultural Worker Population, Summary Table, available at https://lsc-live.app.box.com/s/dfsy78qhagsk12oxi6fr79pd5eq0geqp.