III. H-2A WORKERS IN THE U.S. – DATA

The three federal agencies that share responsibility for the H-2A program each publish a variety of data.  The Department of Labor (DOL) makes available the number of applications for temporary labor certification and the number of H-2A job positions requested and certified.  In addition, DOL publishes information on petitioners, employers, job location, and job type.  The Department of State (DOS) annually presents data on the number of visas actually issued and the nationality of the workers that receive them.  The Department of Homeland Security (DHS) publishes the number of petitions for nonimmigrant H-2A worker status that were submitted and approved, as well as the number of border entries for individuals with H-2A visas, and the countries they came from. In 2012, the Department of Labor certified close to 100,000 H-2A jobs, and the State Department issued close to 65,000 H-2A visas. As of May 2013, DHS has not yet published data from 2012. Several U.S. states in the South have the largest number of H-2A workers, with Washington and California following close behind. Every year, over 90% of H-2A workers are Mexican nationals.  Anecdotal evidence suggests that the great majority are men under the age of 40, but age and gender statistics are not published by any federal agency.
 
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A. The Number of H-2A Workers in the U.S.
The exact number of H-2A workers in the U.S. at any given time is not publicly available.  The Department of Labor (DOL), the Department of Homeland Security (DHS) and the Department of State (DOS) each maintain data in line with their respective roles in the H-2A process and publish that data at regular intervals, whether quarterly or annually. The Department of Labor tracks the number of workers that employers are certified to bring to the U.S.  The Department of State tracks how many visas were actually issued to foreign workers applying at U.S. consulates abroad. The Department of Homeland Security tracks the petitions for nonimmigrant H-2A status and the number of admissions to the U.S. of individuals with H-2A visas. While no agency presents a complete picture or even an accurate count of the number of individuals present in the U.S. with an H-2A visa, the data is helpful to understand the general scope of the H-2A workforce.
 
1. Department of Labor data
The Department of Labor (DOL) certified 85,248 H-2A positions in 2012.79  This number comes from ETA Form 9142, on which the employer requests a certain number of workers. If DOL is satisfied that requirements are met, it will certify the number of workers requested. Thus the H-2A case disclosure data published by the DOL’s Foreign Labor Certification reflects only the number of H-2A positions were certified through the temporary labor certification process. The fact that a job position was certified for an H-2A worker does not necessarily mean that it was actually filled by an H-2A worker.
 
2. Department of State data
The Department of State (DOS) tracks the numbers of H-2A visas that are actually issued to individual foreign workers in any given year. In 2012, DOS issued 65,345 H-2A visas.80  This number gives perhaps the best idea of how many foreign H-2A workers may enter the U.S. in any given year. However, this number does not indicate how many H-2A workers are actually present and working in the U.S. in any given year.  It does not count the number of workers who entered with H-2A visas in previous years and extended their stay in the present year.  Furthermore, even if a worker is issued a visa it does not necessarily mean that the worker actually entered the U.S.  Finally, H-2A agricultural workers from the Caribbean are not counted in the DOS H-2A statistics at all because they are exempt from the visa requirements and enter the U.S. without an actual visa being issued by DOS. 
 
3. Department of Homeland Security data
Department of Homeland Security (DHS) has two subagencies involved in the H-2A program and thus two data sets pertaining to the number of H-2A workers.  The U.S. Citizenship and Immigration Services receives the petitioner’s Form I-129, which requests that a certain number of visas be made available.  The Customs and Border Patrol interviews the workers who have received H-2A visas from their local U.S. Consulates at the border or port of entry, and issues each worker an entry document, or I-94.
 
a) U.S. Citizenship and Immigration Services
U.S. Citizenship and Immigration Services (USCIS) reports 6,865 approvals of H-2A nonimmigrant worker petitions in 2012.81 Because multiple beneficiaries (workers) may be included on one single Form I-129, this represents the number of petitions, not the number of workers.  USCIS does not publish data on the number of workers that are requested on each petition when the petition is for multiple workers.  Moreover, the same Form I-129 used for petitioning for new workers as well as to make changes to an existing H-2A workers' status. Therefore, the number of approvals includes petitions for new unnamed H-2A workers, petitions to extend the stay of individual H-2A workers, and petitions to become the new employer of H-2A workers already in the United States.82 USCIS does not break down the approval number into applications for new and existing H-2A workers. 
 
b) Customs and Border Patrol
U.S. Customs and Border Patrol (CBP) counted 188,411 H-2A visa admissions in 2011.83 This number counts the number of admissions with I-94s entries. CBP gives an I-94 to all non-immigrants upon arrival in the U.S. and usually takes them back upon their departure.84 The Department of Homeland Security’s Office of Immigration Statistics publishes these I-94 statistics in their annual Yearbook of Immigration Statistics.  The number of nonimmigrant admissions refers to the number of admissions rather than the number of individuals.85 The way the data is collected does not distinguish between the first and return entries. Rather, all entries are counted as separate admissions.86 In other words, there were 188,411 H-2A admissions to the U.S. in 2011, not 188,411 workers. 
 
B. H-2A Employer Demographics 
DOL regularly publishes selected statistics. In 2012, the five states with the most H-2A jobs certified by the Department of Labor are North Carolina, Georgia, Washington, Louisiana, and Florida.87 Employer associations apply to bring in more workers than individual employers.  The biggest employer associations are North Carolina Growers Association, Washington Farm Labor Association, Western Range Association, and the Virginia Agricultural Growers Association.88 The top single employers in 2012 include Peri & Sons Farm for onions in California, Sierra Cascade Nurseries for strawberry plants in California, Zirkle Fruit Company, Inc. for yellow cherries in Washington, and Bland Farms for onions in Georgia.89 The crop using H-2A worker labor is listed as general farm worker, which includes farms that grow and harvest a variety of fruits and vegetables.  The named agricultural commodities where most workers are used are tobacco, oranges, cotton and onions. 
 
 
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C. H-2A Worker Demographics 
The U.S. Citizenship and Immigration Services (USCIS) may approve petitions for H-2A nonimmigrant status only for individuals from certain countries designated annually by the Department of Homeland Security (DHS) and the Department of State (DOS).90 Individuals from other countries are allowed only if determined to be in the U.S. interest.91 For the year 2013, DHS has identified 59 countries eligible to participate in the H-2A program. Even though dozens of potential source countries are on the authorized list, more than 90% of H-2A workers are from Mexico.92
 
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1. Age and gender
Information about the gender and age of H-2A workers is not published but it is routinely maintained.  When the information was requested, DOS employees revealed that in 2010, 96% of H-2A workers were male, the largest number of workers was between the ages of 18 and 30, and the average worker is 32 years old.93 Men account for 53,836 of the visas issued while women had a mere 2,074 (or 3.7% of all H-2A visas issued in FY 2010).94 Anecdotal evidence further suggests that employers prefer to hire young men as workers.95 Indeed, coupled with the data, a legitimate question is whether there is systemic gender and age discrimination against women and older workers.
 
  • 79. U.S. Dep’t of Labor, Foreign Labor Certification Data Center, Case Disclosure Data, http://www.flcdatacenter.com.
  • 80. U.S. Dep’t of State, Nonimmigrant Visa Issuance by Visa Class and Nationality FY 1997-2012 (2013) Detail Table at http://travel.state.gov/content/visas/english/law-and-policy/statistics/....
  • 81. U.S. Dep’t of Homeland Security, USCIS, I-129 H2A Performance Data FY 2012 Qtr4, available at http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration....
  • 82. 8 C.F.R. § 214.1(c)(1) (2009); 8 C.F.R. § 214.2(h)(2)(i)(D)(2011).
  • 83. Randall Monger, Office of Immigration Statistics, Dep’t of Homeland Security, Annual Flow Report, Nonimmigrant Admissions to the United States: 2011 (2012).
  • 84. Id.
  • 85. Id.; see U.S. Dep’t of Homeland Security, Office of Immigration Statistics, 2011 Yearbook of Immigration Statistics (2012).
  • 86. Interview with Office of Immigration Statistics employee (Oct. 17, 2011).
  • 87. U.S. Dep’t of Labor, Office of Foreign Labor Certification, Selected H-2A Statistics FY 2012.
  • 88. Id.
  • 89. Id.; see http://www.youtube.com/watch?v=s5R2rKcpuos for background summarizing the farm operations of one large H-2A employer, Sierra Cascade Nursery.
  • 90. 8 C.F.R. § 214.2(h)(5)(i)(F)(1)(i).
  • 91. 8 C.F.R. § 214.2 (h)(5)(i)(F)(1)(ii).
  • 92. U.S. Dep’t of State, Nonimmigrant Visa Issuance by Visa Class and Nationality FY 1997-2012 (2013).
  • 93. Nonimmigrant visa statistics for age and gender of H-2A workers was provided to Global Workers Justice Alliance from the Department of State, Visa Office, Immigrant Visa Control and Reporting Division (2011).
  • 94. Id.
  • 95. See, e.g., Reyes-Gaona v. N.C. Growers Ass’n, 250 F. 3d 861, 863-67 (4th Cir. 2001) (Mexican plaintiff not hired for H-2A job in the U.S. because he was over 40 years old, lost age discrimination case because plain language of the ADEA does not regulate age discrimination against a foreign national that occurs in another country, even if the employment sought is with a U.S. company at a job located in the U.S.); and Olvera-Morales v. Sterling Onions, Inc., 322 F. Supp. 2d 211, 214 (N.D.N.Y. 2004) (Mexican women brought a Title VII gender discrimination case claiming that although they were qualified for H-2A jobs, those positions were reserved for men, and the women were instead hired for H-2B jobs, which were less favorable with lower wages and fewer benefits).

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