H-2A visa myths debunked
By: Samantha Ayoub (American Farm Bureau Federation - AgUpdate)
There really are legal differences between transient workers, immigrants, and foreign criminals. The liberal left has been yodeling over immigration in order to deliberately misinform the public and confuse the issue.
Why have we seen hair-on-fire warbling over food rotting in the fields and liberals starving in the Blue Islands? Farmers (especially corporate farmers) are required, by law, to pay minimum wage and provide benefits to H-2A transient workers. THAT is the reason illegal immigrants are critical for harvesting crops -- bigger profits.
H-2A transient workers are covered by labor laws, have rights and protections, and can be in the United States legally for up to three years on a single visa. But these people are transient residents of the United States in the same respect as tourists and students. They are not in the United States seeking permanent residence.
There aren't any limits on the number of H-2A visas that can be issued. So, all the needed farm labor could be supplied by transient workers enrolled in the H-2A program. Cooperation with Mexico and Canada to assist in educating and recruiting participants in the H-2A program could possibly reduce the amount of illegal immigration into the US.
So, don't be misled by the local yodeling liberal. No one is threatening to deport transient workers any more than they are threatening to deport foreign tourists. What the yodeling liberals are actually supporting is criminal exploitation of people who have been duped into entering the US illegally just to save a nickel on labor costs.
S E E D E D C O N T E N T
The H-2A Temporary Agricultural Workers program - commonly known as H-2A - is the leading source of temporary and seasonal farmworkers in the United States. H-2A workers come from many countries but mostly Mexico. They're vital to many types of farms, particularly for specialty crops that are not machine-harvested. This Market Intel addresses some of the most common myths about the H-2A program, drawing directly from the Immigration and Nationality Act that authorized the program in 1952.
Myth - H-2A workers stay long-term in the United States.
H-2A workers must "perform agricultural services of a temporary or seasonal nature." In implementing the Immigration and Nationality Act, the U.S. Department of Labor has restricted H-2A use to both seasonal and temporary work. Petitions - the applications and job contracts for H-2A workers - may last as long as 10 months, but the average contract is only six months. That's created a barrier to utilizing the H-2A program for industries like dairy or nurseries that experience labor shortages for more than 10 months.
But a worker who holds a H-2A visa may take different employment contracts to remain in the United States. for as long as three years if they utilize one-year extensions. Overstaying a visa is rare. Less than 2 percent of all nonimmigrant visa holders, of which there are more than 80 programs, stay longer than the length of their visas. If more than 10 percent of nonimmigrants from one country overstay, the entire country can be found ineligible for H-2-visa programs.
Myth - H-2A workers take American jobs.
The first step of petitioning to employ H-2A workers is proving that "there are not sufficient workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition." That's accomplished by performing domestic-employee recruitment through the state's and often surrounding-state workforce agencies. Employers must hire any American applicant - regardless of qualification - who applies before and to as much as halfway through the H-2A contract period. But as discussed in previous Market Intels, the participating American domestic workforce continues to decline and to move away from agricultural work. Less than 10,000 job postings out of more than 380,000 positions requested in fiscal- year 2023 received an application. And when a domestic worker does apply for one of those jobs, they often don't work through the entire production window - if they come to work at all. If an employer laid off any U.S. worker within 60 days of the petition start date, they are ineligible to petition for the H-2A program unless the domestic worker was offered and rejected the potential H-2A position.
Myth - H-2A workers are a form of "cheap" labor.
The certification of H-2A workers is reliant upon "not adversely affect(ing) the wages and working conditions of workers in the United States similarly employed." Rather than evaluating whether there's an adverse effect on wages, the Department of Labor pre-emptively requires that H-2A workers are paid whichever is more of the federal or state minimum wage, the prevailing wage rate, the collective-bargaining rate or the adverse-effect wage rate.
For six job classifications, including farmworkers on crop and livestock operations - which represent 89 percent of H-2A-certified positions - the adverse-effect wage rate is taken from the combined crop and livestock wages in the U.S. Department of Agriculture-administered Farm Labor Survey of the preceding November. The 2025 adverse-effect wage rate will be derived from the next Farm Labor Survey, which will be released Nov. 20, and will take effect immediately upon publication in the Federal Register.
The national average adverse-effect wage rate was $17.55 in 2024. For comparison, farmworkers in Mexico earned $1.59 per hour in 2022. By coming to the United States, Mexican H-2A workers can earn the equivalent of an entire day's work at home - while working one hour in California, which has the nation's largest adverse-effect wage rate at $19.75 per hour. Regardless of how a farmworker is paid - for example, hourly versus piece rate - they must make at least the adverse-effect wage rate for each hour they work. For eight of the past last 10 years, the adverse-effect wage rate has outgrown domestic-employment wages. Since 2019 the adverse-effect wage rate has increased an average of almost 6 percent per year while other domestic wages only grew 3.7 percent on average.
As of March 2023 the adverse-effect wage rate has become even more complex. Any H-2A worker who performs a job outside of the Standard Occupation Classifications included in the Farm Labor Survey's combined crop and livestock wages must now be paid full-time based on the wage found in the Bureau of Labor Statistics-Occupational Employment and Wage Statistics mean hourly wage for the general economic conditions - regardless of how frequently he or she performs that job duty.
There are six Standard Occupation Classifications.
• graders and sorters
• agricultural-equipment operators
• farmworkers, both crop and non-range livestock
• packers and packagers
• other agricultural workers
Yet the Occupational Employment and Wage Statistics department does not survey agricultural workers. Basing farmworker wages off of that survey means labor costs are being further inflated by non-related industries. The outcome of those occupations may be similar but the qualifications and requirements differ greatly. For example a laborer driving a truck of sugar cane from the farm to the mill on local roads must now be paid a wage based on that of commercial-drivers-license-holding long-haul truck drivers.
The hourly wage is far from the only cost for employing H-2A workers. Employers must provide all transportation to and from the United States. While working in the United States, employers are also responsible for providing housing for all employees. The USDA reports that housing costs are $9,000 to $13,000 per worker. But that estimate doesn't account for housing requirements that vary greatly by state and can be quite stringent. Transportation costs vary greatly depending on the H-2A worker's hometown. And with the disaggregation of wages discussed previously, the cost of transporting workers locally has increased as H-2A workers who transport others are now considered chauffeurs.
Employers are also responsible for all application fees for the labor petition and each individual worker visa. Fees are collected at each step of the application process - from the Department of Labor, the U.S. Customs and Immigration Service, and the State Department. Depending on the number of positions certified, those fees can quickly climb into the thousands of dollars. As of April 1 the U.S. Customs and Immigration Service increased its nonimmigrant-worker petition-Form I-129 fees substantially; most of the increase is a fee to fund an unrelated asylum program. The fee increases vary depending on the size of the employer. Small employers with fewer than 25 full-time employees who have not yet designated their H-2A workers saw a 65 percent increase in petition fees. And fee increases are as much as 267 percent for large employers with named workers.
Lack of affordable labor compared to international competitors threatens the competitiveness of American products in the international market. The U.S. agricultural trade deficit reached a record $17.1 billion in fiscal year 2023 and is forecasted to continue expanding. The trade deficit is driven largely by specialty crops and other horticultural products, which account for 49 percent of all imports by value. Domestic specialty-crop production - defined as fruit, vegetables and nursery crops - is reliant on H-2A workers. Labor is the No. 1 expense in specialty-crop production, accounting for 38 cents of every dollar spent on farm expenses. Ballooning labor costs threaten the viability of specialty-crop farms nationwide. Farms that are unable to produce because of labor shortages face production cuts and decisions regarding whether to shut down. That could avalanche into major losses for rural communities and economies. If fruit and vegetable production continues to decline domestically due to lack of affordable labor, that will further worsen agricultural trade deficits.
Myth - H-2A is only used by large employers.
H-2A workers are vital to farms of all sizes. More than two-thirds of H-2A petitions request fewer than 10 temporary workers. Forty-five percent of all H-2A jobs are found in contracts containing between 10 and 99 workers. While some employers may submit multiple positions during a fiscal year, only 1 percent of all employers employ more than 500 employees.
But because of the growing complexity of H-2A rules and paperwork, there has been an increase in the use of farm-labor contractors. Those companies employ more workers, whom they apply for, pay and house. Those workers are then sent to different farms to work. Farm-labor contractors give farmers access to temporary guestworkers to alleviate labor shortages without needing to navigate the H-2A process themselves. In 2020 more than 40 percent of H-2A jobs were employed by farm-labor contractors. But the increase of farm-labor contractors means additional costs to farmers and less direct oversight into the well-being of their employees.
Myth - H-2A is a small fraction of the ag-labor force.
According to the 2022 Census of Agriculture, more than 2.1 million people were hired farm employees, spanning all commodities, jobs and length of employment. In fiscal-year 2024 there were 378,513 positions that were H-2A-certified - equal to 17 percent of the total agricultural workforce. In labor-intensive industries such as fruit, vegetable and nursery-greenhouse production, the share is even larger. Almost 600,000 fewer people were hired to work in agriculture between the 2012 and 2022 censuses. At the same time the number of H-2A positions certified grew 15 percent per year on average in those 10 years, going from 85,248 positions in 2012 to 371,619 positions in 2022. The H-2A program is one of the few visa programs without a cap. As the number of H-2A workers continues to grow, so does the worker importance to American agriculture.
Myth - H-2A workers have no legal protections.
Employers must provide workers with an overview of their rights under the H-2A program, in the language most commonly understood by their workers. H-2A employers are subject to state and local guidelines for workplace compensation and safety. Regardless of local requirements, all H-2A employees must be provided with worker-compensation insurance. H-2A workers are also subject to state overtime-wage rules. With the increased labor costs discussed previously, that can result in more employees working less hours so employers can avoid paying overtime wages. But H-2A workers are protected from employment loss with a "three-fourths guarantee." That protection requires that employers pay workers for at least 35 hours per week for the entire length of the job contract, even if the work is completed in fewer hours. If the employee works less than three-fourths of the workdays on the contract, the employer must pay the difference to meet the guarantee.
H-2A employment is also subject to safety inspections and state safety standards. Housing must conform to "local standards for rental and-or public accommodations or other substantially similar class of habitation." Those accommodations are inspected by Occupational Safety and Health Administration employees to ensure compliance. Other safety standards include state heat-illness-prevention rules, first-aid requirements or water access.
Violations to any H-2A provisions are handled through the Department of Labor's Office of Foreign Labor Certification Ombudsman Program. Concerns are filed with office and investigated at no charge to the filer. The program provides impartial remediation between parties to discuss events of interest. Workers are protected from retaliation or discrimination resulting from a complaint filing, legal inquiry or testifying in a proceeding. Workers may assert their workplace rights for themselves or others with the same protections from intimidation or discrimination.
Myth - The H-2A program must be working great for farmers based on its popularity and growth.
The H-2A program is crucial to helping combat the labor shortages plaguing the agricultural industry. Recent growth in the H-2A program is reflective of declining labor across the economy as the domestic American labor force shrinks.
But while the program is vital to agriculture, it could be improved. The costs and administrative burdens associated with the program weaken the practicality of utilizing the program for many farmers. Those costs must be borne in the short run but they change the economics of farming, and risk making many American farmers uncompetitive with imports from lesser-wage countries.
With eased administrative burdens and reduced costs, it's likely that use of the H-2A program would grow even faster than it has been in recent years. As the domestic workforce continues to move away from manual labor, foreign-labor sources will become more crucial to maintaining domestic food, fiber and fuel production.
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It’s a given that if you need a contractor to do a construction project in my (well populated) area it will be performed by qualified people, most of whom only speak Spanish. Without this resource, inflation will explode.
Why would that resource be affected?
Were you aware that the Trump (45) administration attempted to increase the use of the H-2A program by US employers? Were you aware that Biden reversed that effort when he took office?
Employing illegal immigrants is a crime. That crime is especially egregious when legal means of employing foreign workers are available. A Venezuelan could immigrate to Mexico and legally work in the US on an H-2A visa faster than they could legally work by illegally entering the United States.