A. Policy: A Balancing Act
visa allows temporary agricultural employment in the U.S. when U.S. workers are not available for the job. Some argue that by using the H-2A
visa program to bring in foreign workers, agricultural employers are allowed to bypass supply and demand market principles that are generally applicable to other U.S. employers. Agricultural employers say there is a labor shortage and that they need a reliable workforce to effectively tend to agricultural commodities on a temporary and seasonal basis. Indeed, reports of a labor shortage in the agricultural sector persist despite rampant unemployment among the general U.S. workforce. There are at least two sides to this story.
One version: not enough U.S. workers want jobs in agriculture. Another version: U.S. workers are not willing to accept the wages and working conditions offered in agriculture, and farmers are either unwilling or unable to offer U.S. workers employment on better terms. In any case, the H-2A program ensures a supply of labor so that wages and working conditions do not need to change to attract workers.
It is accepted that if foreign workers accept employment on terms that U.S. workers will not accept, U.S. workers may suffer as a result. Therefore, the H-2A program is designed so that foreign workers are only hired when employers certify that no qualified U.S. workers are available, even after the employers search for U.S. workers and the same benefits are offered to everyone. Petitions for H-2A workers are granted when the U.S. Department of Labor determines that hiring foreign workers will not adversely affect the wages and working conditions of U.S. workers.
The H-2A program is thus built on a series of protections for both U.S. and foreign workers. The U.S. Department of Labor is in charge of requiring employers to adhere to these principles, in conjunction with state workforce agencies. The Department of Homeland Security handles the employer’s petition for the visas, and the Department of State issues the visas to individual workers. Each agency has its respective procedural and substantive rules governing the admission of foreign workers through the H-2A program.
B. History of Agricultural Guestworkers in the U.S.
The H-2A nonimmigrant visa is rooted in earlier agricultural guestworker importation schemes. Previously, both the Bracero and the early H-2 programs allowed U.S. agricultural employers to import foreign workers. Understanding the background is important in placing the current H-2A program in its proper context. As the leading historian on the issue, Cindy Hahamovitch, has noted:
Since the Second World War, whenever concern about the number of “illegal aliens” in the United States reached a fever pitch, guestworkers gained legitimacy. In fact, within a few years of the wars’ end, the INS began dealing with the unauthorized Mexican immigrants it apprehended by transforming them into Braceros, a process the agency unfortunately called “Drying Out the Wetbacks.” Since the termination of the Bracero Program, whenever the U.S. public has fixated on “illegal immigration,” the H2 Program has grown in importance as a purportedly managed alternative to a seemingly unmanageable issue. The same is true today. In recent debates about immigration reform, both parties have considered proposals that would legalize millions of unauthorized immigrants by transforming them into legal but temporary guestworkers. . . . the story of . . . the thousands of other H2 workers who exited bots and airplanes to work in American fields and orchards is not a story of carefully managed migration. The history of the H-2 Program is a tale of exploitation, protest, litigation, and mass deportation.
1. 19th and early 20th Century labor
The U.S. agricultural industry has utilized foreign labor since the Civil War. Until the late nineteenth century, hundreds of thousands of Chinese immigrants worked in U.S. agricultural fields “to supplant newly freed slaves.” Chinese migrant workers came either indebted to or under contract with employers who paid for their travel to the U.S. The program was unpopular. Specifically, the public was not happy about the Chinese “willingness to accept substandard wages and conditions” even if they had little choice but to do so because of their debt or contract bondage. Lawmakers at the time suggested that the way to “protect domestic workers from unfair competition . . . was to ensure that immigrant workers entered the United States freely or not at all.” This was the backdrop to the first laws limiting foreign workers including the Chinese Exclusion Act in 1882 that banned all Chinese laborers from entering the United States. A few years later, the Foran Act “extended the contract labor ban to immigrants of all nationalities.”
During World War I, Mexican migrant workers freely crossed the border into the U.S. to work in the fields. While they were free to cross the border, they did not receive any permanent immigrant status. After the war and in the years leading up to and during the Great Depression, competition for agricultural jobs increased. Mexican workers were deported in large numbers and in 1924, the U.S. Border Patrol was established. This ended the ability to freely cross the U.S./Mexico border.
Historian Cindy Hahamovitch concludes that worldwide, more modern guestworker programs were conceived in part by exclusionary sentiment: “Temporary immigration schemes – guestworker programs – were state-brokered compromises designed to placate employers’ demands for labor and nativists’ demands for restriction.”
2. World War II guestworker programs
Foreign worker programs began in earnest during World War II. Agricultural lobbyists claimed a massive labor shortage due to the military, manufacturing, and migration. However, in the South, what happened has been described “as a seismic shift in the balance of power between growers and farm laborers. Farm laborers hadn’t vanished, but their reduced numbers gave them the courage to demand more
for their services. And farmworkers’ – especially black farmworkers’ – ability to make demands infuriated employers, who refused to admit that the ground beneath them had shifted.” Thus began two separate agricultural guestworker programs: the Bracero program, operating initially in the Southwest U.S. with migrant labor from Mexico, and the importation of temporary laborers from the Caribbean who primarily worked in Florida and along the eastern seaboard.
a) Bracero Program - Mexico
During WWII, the U.S. Secretary of Agriculture negotiated with the Mexican government to fill the U.S.’s apparent farm labor need with Mexican nationals. Between 1942 and 1964, under what was known as the “bracero program,” hundreds of thousands of Mexican farmworkers were admitted to the U.S. and worked mostly in California and other Southwestern U.S. states. Initially, the U.S Farm Security Administration guaranteed various employment benefits for the workers, covering wages, housing, and a work guarantee.
After World War II, each employer was supposed to contract directly with the workers, continuing the earlier benefits, including fair wages, clean and safe housing, and at least a month of work. As it has been documented, however, abuse and exploitation of workers was widespread. Most Braceros simply did not know they were entitled to contracts or that they had any right to fair wages and benefits. No one told them. The lack of government oversight and enforcement presented a situation primed for exploitation.
U.S. workers did not fare well during the time of the Bracero program either. Employers were supposed to hire Mexican workers only when faced with a labor shortage. In reality, employers favored the Mexican workers even when U.S. workers were available, and overall wages in agriculture decreased as a result.
Abuses suffered by Braceros were well-publicized. There were organized strikes against employers, media spotlight, and lengthy legal battles. In 1964, after 22 years and 4.5 million workers, the U.S. terminated the Bracero program.
b) Caribbean workers and H-2 program legislative history
Also during World War II, the agriculture industry in Florida extensively lobbied the U.S. government for Caribbean workers. U.S. State Department officials negotiated terms of a labor importation program with the British Secretary for the Colonies, despite the British initial concern that “the scheme sounded a bit too much like indentured servitude.” The U.S. eventually persuaded them. The Caribbean guestworker scheme was modeled after the Bracero program, requiring a certain wage, free transportation, housing, and a work guarantee. In 1943, employers obtained permission to import workers specifically from Barbados and the Bahamas. Around the same time, Jamaican workers were also being imported to labor in the Northeast, and within a few years were hired to work cutting sugarcane in Florida.
The Caribbean labor importation scheme was the actual precursor to the H-2 temporary foreign worker program, eventually codified in the Immigration and Nationality Act (INA) of 1952. Agricultural and non-agricultural temporary workers were included in the initial H-2 program. In 1986, the Immigration Reform and Control Act (IRCA) separated them into the current H-2A(agriculture) and H-2B(non-agriculture) sub-categories.
C. Duration of an H-2A Visa
H-2A visas are valid for the time period in the approved work contract, which must be less than one year, but can be extended for up to 12 additional months. The maximum time period any H-2A worker may be continuously present in the U.S. is 3 years. After that time, he must leave for an uninterrupted period of 3 months before seeking readmission to the U.S. on another H-2A visa.
H-2A workers perform a wide range of agricultural work. Examples include tending to tobacco and cotton, pruning and picking fruit such as cherries, oranges, apples and peaches, planting and harvesting onions and other vegetable row crops, de-tasseling corn, harvesting sugarcane, working in nurseries, greenhouses and on cattle ranches, and herding sheep.
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